CRIMINAL LAW AND PROCEDURE
by Charles P. Bubany*
Sheer numbers alone, as usual, made criminal cases 1 a heavy burden on the Fifth Circuit during this survey period. The task of an
appellate court in deciding criminal appeals is made even more difficult by the fact that the answers are not always clear and that, in
some areas, even the proper analysis is in doubt. The Fifth Circuit
did its share of groping for proper principles. Unfortunately for the
court, it does not have the luxury of applying the law as it wants but
must apply it according to what the United States Supreme Court
says it is. That is not always easy. The Fifth Circuit made a valiant
effort to provide guidance and to illuminate the often not-so-bright
lines emanating from the High Court.
I.
THE CHARGING DECISION
Attacks on the decision to charge may be grouped into three categories: (1) the prosecution's decision whether and what to charge;
(2) the grand jury's determination to indict; and (3) the formal
charge itself.
A.
Prosecutorial Discretion
Wide leeway by the prosecutor is fostered by a presumption of
prosecutorial good faith and a judicial unwillingness to interfere with
the executive discretion involved in the charging decision. 2 Allegedly
improper prosecutorial motives for the criminal charge, however, are
a not infrequent challenge.
• Professor of Law. Texas Tech University School of Law. B.A., St. Ambrose College,
1962; J.D., Washington University School of Law, 1965. The assistance of George Haratsis,
third-year law student at Texas Tech University School of Law, is gratefully acknowledged.
1. Habeas corpus cases are discussed in this article to the extent they involve significant
substantive issues of criminal law and procedure. The procedural requirements and scope of
review of post-conviction remedies are treated elsewhere in the symposium. See Baker, Federal Jurisdiction, Fifth Circuit Symposium, 16 TEX. TECH L. REV. 145 (1984).
2. United States v. Hoover, 727 F.2d 387, 389 (5th Cir. Mar. 1984).
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Selective Prosecution
The often-raised but usually unsuccessful claim of selective prosecution has two prongs: (1) singling out the defendant for prosecution from other persons similarly situated who have committed the
same acts; and (2) selection based on improper motive amounting to
bad faith or invidious discrimination. 3 To require a hearing on the
defendant's motion to dismiss, the defendant must make a prima facie
showing on both prongs, which the court has elaborated as a presentation of facts "sufficient to create a reasonable doubt" about the constitutionality or propriety of prosecution. 4
United States v. Hoover 5 involved a claim, rejected by the district
court, that prosecution of the defendant, an air traffic controller, for
participating in a strike while a federal employee was impermissibly
selective because the decision to prosecute was based on his vocal support of the 1981 nationwide strike of the Professional Air Traffic Controllers (PATCO) and his status as an officer of PATCO. 6 The first
prong of Hoover's two-fold burden, namely that he was singled out
for prosecution, was satisfied by evidence that of the over three hundred controllers in the Houston area not reporting for work, only
three (including Hoover) were prosecuted.? On the second prong, improper or bad faith motive for selection, however, he was unsuccessful
in making out even the prima facie case needed to shift the burden to
the government to demonstrate a legitimate basis for selection. 8 Prosecution of Hoover because he was a highly visible and vocal opponent
of the nonstrike law was permissible. Potential media attention as a
basis for prosecution is consistent with the legitimate law enforcement
objective of achieving general compliance through prosecutions likely
to have the greatest deterrent effect. Hoover's claim that the government's decision to prosecute him was to punish him for his status as a
union officer was more troublesome; union participation is a protected
activity under federallaw. 9 Hoover countered the government's con3. Id. at 389 (citing United States v. Greene, 697 F.2d 1229, 1234 (5th Cir.), cert. denied, 103 S. Ct. 3542 (1983». Cf Oyler v. Boles, 368 U.S. 448, 454-57 (1962).
4. United States v. Jennings, 724 F.2d 436, 445 (5th Cir. Jan. 1984) (no more than
"broad allegations" concerning selective prosecution of blacks). See also United States v.
Greene, 697 F.2d 1229 (5th Cir.), cert. denied, 103 S. Ct. 3542 (1983).
5. 727 F.2d 387 (5th Cir. Mar. 1984).
6. Id. at 388.
7. Id. at 389.
8. Id. at 389-90.
9. 5 U.S.c. § 7102 (1982).
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tention that he was prosecuted because he was a strike leader rather
than because he was a union official by inference from the fact that of
the four strike leaders identified, only he was prosecuted. 1O But circumstantial evidence was not enough. In the absence of any direct
evidence of special or unusual procedures in deciding to prosecute
him rather than the others, he did not make out a prima facie case of
selective prosecution. II
2.
Prosecutorial Vindictiveness
Related to the claim of selective prosecution is that of
prosecutorial vindictiveness. Due process imposes a limit on the
power of the prosecutor to use his charging discretion to punish a
criminal defendant for having exercised legal rights afforded him in
the criminal process. 12 Until recently the Supreme Court decisions
concerning prosecutorial vindictiveness claims have generated at least
as much heat as light. 13 Two principles are involved: prosecutorial
discretion to bring additional or different charges and the right of a
criminal defendant to exercise legal rights without fear of reprisal.
The proper meld of the two principles, "always in conflict," has been
a difficult issue for the federal courts. The difficulty was nowhere
more apparent than in the Fifth Circuit's leading case of United States
v. Krezdorn. 14
In Krezdorn, the defendant was originally convicted on four
counts of forging immigration documents. IS The conviction was reversed because of the improper admission into evidence of thirty-two
uncharged additional forgeries. 16 On remand, the government ob10. 727 F.2d at 390.
II. Id. In an earlier PATCO case, that all strike leaders had been prosecuted was found
to be strong evidence that the defendants were prosecuted because they were strike leaders and
not because they were union officials. United States v. Greene, 697 F.2d 1229 (5th Cir.), cert.
denied, 103 S. Ct. 3542 (1983).
12. See North Carolina v. Pearce, 395 U.S. 711 (1969) (harsher sentence on retrial after
successful appeal violates due process unless record reflects it is based on identifiable conduct
occurring after original sentencing).
13. Compare Blackledge v. Perry, 417 U.S. 21 (1974) (decision to prosecute for higher
charge barred after defendant sought trial de novo on appeal of misdemeanor conviction) and
North Carolina v. Pearce, 395 U.S. 711 (1969) (imposition of more severe sentence on retrial
after successful appeal barred absent "identifiable conduct" of defendant since first sentence)
with Bordenkircher v. Hayes, 434 U.S. 357 (1978) (due process not violated by more severe
charges after defendant's refusal to plead guilty to lesser charges).
14. 718 F.2d 1360, 1366 (5th Cir. Nov. 1983), cerr. denied, 104 S. Ct. 1416 (1984).
15. !d. at 1362.
16. Id.
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tained a superseding indictment containing the four original counts
but also a new conspiracy count in which the forgeries charged in the
other counts were alleged as overt acts. 17 The new count was an apparent response to the suggestion of the previous appellate opinion
that the extraneous forgeries would be admissible if a plan or scheme
were at issue. 18 The district court's dismissal of the added conspiracy
count was affirmed by a panel but was reversed and remanded by the
court en banc. 19 A majority of the en banc court refused to find a
presumption of vindictiveness from the prosecutorial decision to increase the number or severity of charges after a successful appeal.
The court concluded that the prosecutor was acting not to punish the
defendant but to pursue a course of action dictated by the appellate
opinion that reversed the initial conviction. 20 The test for whether a
presumption of vindictiveness applies, according to the court, is
whether "any objective event or combination of events in those proceedings should indicate to a reasonable minded defendant that the
prosecutor's decision to increase the severity of charges was motivated
by some purpose other than a vindictive desire to deter or punish appeals . . . . "21 The defendant has the burden of proof by a preponderance of evidence to raise the presumption, in which case the
burden shifts to the prosecution to overcome the presumption by evidence of events occurring since the time of the original charge which
justify the subsequent change. 22
Dissenting Judge Goldberg regards the majority's attempt to
harmonize Fifth Circuit precedent and recent Supreme Court decisions as untrue to the latter. His reading of the Supreme Court's decisions which culminate in United States v. Goodwin 23 is that although
vindictiveness will not be presumed from the prosecutorial decision to
17. [d.
18. [d. The district court found that the "primary, if not sole, purpose . . . was to overcome the Fifth Circuit's objections to the introduction of the 32 extraneous forgeries." [d. at
1363.
19. [d. at 1365.
20. [d.
21. [d.
22. [d.
23. 457 u.s. 368 (1982) (absent evidence of a prosecutorial desire to punish the exercise
of a legal right, due process is not violated by a pretrial decision to bring more serious charges
after the defendant exercised right to a jury trial on lesser charges). See United States v.
Ruppel, 724 F.2d 507, 508 (5th Cir. Feb. 1984) (acknowledging that "[t]he Goodwin Court
undoubtedly focused on the salient differences between pretrial and posttrial settings in determining whether a presumption of prosecutorial vindictiveness applied").
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"up the ante" in the pretrial context, increased charges by the prosecution in the posttrial context will raise such a presumption. The presumption can be overcome only by evidence showing that the
increased charges could not have been brought before the defendant
exercised his right to appeal. The prosecution's decision in Krezdorn
was based on a desire, as the district court put it, to "get around" an
evidentiary rule of which the prosecutor was merely reminded on the
earlier appeal and of which he could have taken advantage at the first
trial. 24 Hence, due process would require dismissal of the additional
charges.
The critical difference between the respective rationale of the majority and dissenting opinions is the divergent view of the function of
due process in the posttrial context. This difference in perspective
causes the majority to view the due process limit as one against actual
vindictiveness and the presumption as merely an evidentiary device
for estabishing actual vindictiveness without which there is no due
process violation. 25 Judge Goldberg, on the other hand, sees the limit
as a protection against an apprehension of vindictiveness that chills
free exercise of rights and which may result from increased charges in
the posttrial stages regardless of the prosecutor's actual motives. 26 A
head count of Supreme Court justices suggests that Judge Goldberg is
right. 27
The Krezdorn formula was applied in the unique fact situation of
Byrd v. McKaskle. 28 Byrd had been previously convicted for robbery
by assault for which he received the then-maximum punishment of
life imprisonment. 29 After he obtained a reversal, the prosecutor rei24. 718 F.2d at 1365.
25. [d. at 1366, 1371 (en banc) (Goldberg, J., dissenting).
26. [d. Judge Goldberg aptly noted that use of the term "vindictiveness" is unfortunate
and certainly should be viewed as a term of art. Id. at 1367. As in Krezdorn, due process
could be violated even if the prosecutor did not intend to punish but his decision had that
effect. [d. See Thigpen v. Roberts, 104 S. Ct. 2916 (1984) (absent evidence rebutting presumption of vindictiveness, indictment for felony offense arising out of same conduct for which
defendant was convicted of various misdemeanors held barred after defendant's de novo
appeal).
27. See Wasman v. United States, 104 S. Ct. 3217 (1984), in which five justices emphasized that due process is a protection against a reasonable apprehension of retaliatory motive
as well as actual vindictiveness. [d. at 3221.
28. 733 F.2d 1133 (5th Cir. June 1984).
29. [d. at 1134-35. At the time of the Byrd case a conviction of a second felony offense
enhanced by a previous conviction for a similar offense made the maximum punishment authorized for the offense mandatory. Tex. Penal Code art. 62 (1929) (repealed 1973). The
punishment for robbery by assault ranged from 5 years to life imprisonment. Capital punish-
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ndicted him for robbery with firearms, which authorized the same
punishment. 30 Reindictment on the same charge as in the first trial
would have authorized only a maximum of twenty years on election
by the defendant to be punished under the new code. 3) Thus, even
though he was not subject to any greater punishment under the new
charge than he was at his earlier trial, the court concluded the charge
was more severe from the defendant's point of view. 32 Nevertheless,
applying the Krezdorn test, the court found no presumption of vindictiveness because the events indicated a motivation by the prosecutor
not to punish the defendant for his successful appeal, but simply "to
expose Byrd to the same maximum sentence he faced in the 1972
trial-life imprisonment."33
Reindictment of a defendant on different charges because of a
hung jury was held to present no possibility of vindictiveness in
United States v. Ruppel. 34 Since the mistrial did not result from any
action of the defendant, the altered charge could not have resulted
from any exercise of rights on his part.
B.
Grand Jury
The presence of unauthorized persons before the grand jury, a
violation of Federal Rule of Criminal Procedure 6(d), will require dismissal of the indictment. 35 In United States v. Fulmer,36 the district
court dismissed a second superseding multiple count mail fraud and
conspiracy indictment because of the unauthorized presence before
the grand jury of an FBI agent who was not a sworn witness. 37 The
dismissal was with prejudice, however, because "the cumulative effect
of the Government's blunders and errors" had reached the level of
ment was available for robberies involving deadly weapons. Tex. Penal Code art. 1404 (1925)
(repealed 1973).
30. 733 F.2d at 1134-35.
3 I. Robbery with firearms is classified as a first-degree felony. TEX. PENAL CODE ANN.
§ 12.32 (Vernon 1974). Robbery by assault, however, is only a second degree felony. [d.
§ 29.02.
32. Of course, if the decision to reindict does not subject the defendant to greater charges,
there can be no claim of vindictiveness. See Deloney v. Estelle, 713 F.2d 1080, 1083 (5th Cir.
Sept. 1983).
33. Byrd v. McKaskle, 733 F.2d 1133, 1138 (5th Cir. June 1984).
34. 724 F.2d 507 (5th Cir. Feb. 1984).
35. The Fifth Circuit has held that violation of rule 6(d) makes the indictment per se
invalid without a showing of prejudice. United States v. Echols, 542 F.2d 948, 951 (5th Cir.
1976), cerro denied, 431 U.S. 904 (1977).
36. 722 F.2d 1192 (5th Cir. Dec. 1983).
37. [d. at 1194.
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violating the defendant's right to a fair trial. 38 The Fifth Circuit acknowledged that governmental ineptitude and carelessness might
reach a degree of abhorrence to warrant a dismissal with prejudice
under the district court's supervisory powers, but found that Fulmer
was not such a case. 39 Perseverance by the government in the face of
defense motions raising error, but with no increase in charges in the
superseding indictments, neither raised an inference of bad faith nor
amounted to such gross negligence as to bar prosecution. 40 In addition, no actual prejudice was shown.
The petitioners in Guice v. Fortenberry 41 claimed that blacks
were unconstitutionally excluded from service as foremen on the state
grand jury that indicted them. 42 The magistrate in an evidentiary
hearing after an earlier remand had found a prima facie case of racial
discrimination based on a pattern of underrepresentation. 43 No black
had been appointed grand jury foreman in fifteen years although the
pool from which venire members were selected was approximately
forty-five percent black. 44 A majority of the Fifth Circuit panel
agreed, rejecting the government's argument that the significant period was the two and one half years since the Louisiana jury exemption law that had operated to exclude blacks from grand jury venires
was declared unconstitutional. 45 The panel disagreed with the magistrate's finding that the prima facie case of discrimination had been
successfully rebutted by testimony of the judge who had appointed
twenty-eight of the thirty-one foremen chosen in the fifteen-year period. 46 The judge's claim of good faith was insufficient in the face of
admittted subjectivity and reliance on personal knowledge in selection
without objective criteria and guidelines. 47 Because the indictments
38. [d. at 1194-95.
39. [d. at 1196.
40. [d. at 1195.
41. 722 F.2d 276 (5th Cir. Jan. 1984).
42. [d. at 277.
43. [d.
44. [d. at 278. The remand was to allow for presentation of evidence on the three-part
test of a prima facie case under Castaneda v. Partida, 430 U.S. 482 (1977) which required the
petitioners to: (I) establish that a distinct group was singled out for separate treatment; (2)
prove substantial underrepresentation over a significant period of time; and (3) show that the
selection procedure was susceptible to abuse or was not racially neutral.
45. 722 F.2d at 280.
46. [d. at 281.
47. [d. In dissent, Judge Garwood argued for a lighter burden in rebutting a prima facie
case of jury discrimination which had only a "most attenuated" relationship to the petitioner's
"substantial rights," and would have deferred to the trial court's fact finding that the grand
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were returned by a grand jury whose foremen had been discriminatorily chosen, the court reversed the denial of the habeas petitions and
ordered the writs be granted setting aside the indictments and
convictions. 48
C.
Indictments
The failure of an indictment to allege all the essential elements of
a cognizable federal offense is a nonwaivable jurisdictional defect,
which mandates reversal of a conviction. 49 Automatic reversal also is
required when a variance between the proof and the indictment is so
significant as to constitute a constructive amendment of an essential
element of the crime charged. 50 A mere variance between the indictment and proof that does not effectively modify an essential element
of the offense charged is reversible error only if it prejudices substantial rights, for example, by unfairly surprising the accused. 51 An indictment charging receipt of a firearm "in interstate commerce" was
held in United States v. Young 52 not to have been constructively
amended by proof the firearm may have been shipped directly from a
foreign country to a state. 53 Because the jurisdictional requirement of
the offense is stated as the unitary concept of "interstate or foreign
commerce,"54 the error was a mere variance between indictment and
proof, not the use of a jurisdictional basis as the predicate for the
commission of an offense separate from that alleged in the
indictment. 55
jury foreman in this case was not selected on racial grounds. [d. at 284. (Garwood, J.,
dissenting).
48. [d. at 282. The court disclaims a decision that racial discrimination in the selection
of a grand jury foreman requires setting aside of the indictment and the conviction in all cases
but notes that the position was assumed in Rose v. Mitchell, 443 U.S. 545, 553 n.4 (1979), and
has since been adopted by the Fifth Circuit. [d. at 281-82.
49. See United States v. Edrington, 726 F.2d 1029 (5th Cir. Feb. 1984) (underlying basis
of confinement held an essential element of the felony offense of escape under 18 U.S.c.
§ 751(a) (1982».
50. Stirone v. United States, 361 U.S. 212, 215-16 (1960).
51. Berger v. United States, 295 U.S. 78, 82 (1935); United States v. Young Bros., Inc.,
728 F.2d 682, 693 (5th Cir. Mar. 1984), cert. denied, 105 S. Ct. 246 (1984).
52. 730 F.2d 221 (5th Cir. Apr. 1984).
53. [d. at 224-25.
54. [d. at 224.
55. [d. at 224-25.
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PRETRIAL MATTERS
A.
Discovery
A violation of the prosecutor's Brady-Agurs 56 due process duty to
disclose exculpatory evidence to the accused does not occur unless
there is suppression of favorable, material evidence. Hence, BradyAgurs rights are not denied if the allegedly suppressed information
was fully available to the defendant and could have been obtained by
the exercise of reasonable diligence. 57 If suppression has occurred, a
tri-Ievel standard of materiality is applied to determine whether reversal is required: (1) knowing use of perjured testimony by the prosecutor if there is any reasonable likelihood that the false testimony
could have affected the fact-finder's judgment; (2) failure to disclose
information specifically requested if the information was favorable
and might have affected the outcome of the trial; and (3) in the absence of a specific request, failure to disclose when the nondisclosed
information creates a reasonable doubt that did not otherwise exist. 58
In Austin v. McKaskle,59 the habeas petitioner claimed the state suppressed exculpatory police records which would have corroborated
his trial testimony that he was the driver rather than the passenger of
the getaway car used in an aggravated robbery.60 The state had
presented testimony that the passenger in the vehicle had pointed a
rifle at the police and hostages and that Austin was that person. The
jury had been reminded of that testimony in the prosecution's closing
argument after which the jury imposed a life sentence. 61 The Fifth
Circuit panel remanded for a hearing on whether the prosecution
failed to correct what it knew or should have known to be false or
incorrect testimony identifying Austin as the passenger of the getaway
car which, if so, would be reversible error. 62 Even if the prosecution
were actually unaware of police records relating to Austin, and if that
lack of knowledge stemmed from negligence as to their existence, the
first-level materiality standard of Agurs would apply.63 The evidence
was obviously material because there was a "reasonable likelihood"
56.
57.
58.
59.
60.
61.
62.
63.
United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963).
United States v. Dean, 722 F.2d 92,95 (5th Cir. Nov. 1983).
United States v. Agurs, 427 U.S. 97 (1976).
724 F.2d 1153 (5th Cir. Feb. 1984).
Id. at 1155.
Id.
Id. at 1156.
See Martinez v. Wainwright, 621 F.2d 184, 187-88 (5th Cir. 1980).
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the judgment of the jury would have been affected by the false testimony.64 The focus of the Fifth Circuit on the nature of the nondisclosed information rather than on the culpability of the prosecution
underlies and explains its expansive interpretation of the prosecutor's
due process duty to disclose. 65
The court appears to have accurately divined the due process
limits on the state's duty to take affirmative steps to preserve evidence
and to make evidence available to the defense for its own testing. In
Johnston v. Pittman,66 a rape defendant's due process rights were held
not violated when the police allowed the contents of a "rape pack" to
spoil before turning it over to the defendant. 67 The "rape-pack" contained fluid samples taken from the vagina of the alleged victim. 68
Because the police allowed the "rape-pack" to spoil, the defendant
argued that potentially exculpatory evidence possibly proving his innocence was lost. 69 The defendant agreed with the state that the situation is analogous to instances when evidence is accidentally lost or
destroyed. 70 The court resorted to a factorial test which emphasizes
the state's bad faith or negligence, the importance of the evidence and
the other evidence of guilt adduced at trial,71 The court concluded
that each factor weighed in favor of the state. 72 There was no evidence of bad faith or negligence by the state; the results of the bloodtype tests the defendant-petitioner wanted to perform on the fluid
samples would not have been important enough to require granting
habeas corpus relief to cure their unavailability; the results of tests
64. 724 F.2d at 1156. The hearing on remand also was directed to determine whether the
records were withheld despite pendency of a Brady request. The court acknowledged the allegedly withheld police records contained favorable evidence relevant to the sentence which
would present a case of nondisclosure after specific request in which the second-prong "mighthave-affected-the-outcome" test of materiality would apply. Its view of the case, however, as a
case of failure to correct a prosecution-induced misrepresentation offacts gives the accused the
benefit of the lesser burden of the first-prong "could-have-affected-the-judgment" standard. A
pending Brady request in this context is relevant to the issue of the prosecution's awareness of
the misrepresentation. Id.
65. The Fifth Circuit, for example, has concluded that the materiality of the nondisclosed
information does not depend on its admissibility as evidence but on its impact on the defendant's ability to prepare a defense. See Sellers v. Estelle, 651 F.2d 1074, 1077 n.6 (5th Cir.
1981). This standard apparently is not constitutionally mandated. See 427 U.S. at 112 n.20.
66. 731 F.2d 1231 (5th Cir. May 1984) (per curiam).
67. Id. at 1233-34.
68. Id. at 1233.
69. Id. at 1233-34.
70. Id. at 1234. See Armstrong v. Collier, 536 F.2d 72 (5th Cir. 1976).
71. 731 F.2d at 1234.
72. Id.
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conducted when the sample was requested would be so inherently unreliable as to be no proof of innocence even if they had been favorable
to the petitioner; and finally, the other evidence adduced by the state
was strong enough to support a guilty verdict even if the petitioner
had introduced blood-type results suggesting his innocence. 73
The Fifth Circuit's approach received confirmation from the
Supreme Court in California v. Trombetta. 74 The Court held that
fourteenth amendment due process does not require state law enforcement officers to preserve breath samples of suspected drunk drivers
for defense testing as a condition of the state's use of test results of
those samples at trial. 75
B.
Severance
If parties are improperly joined under Federal Rule of Criminal
Procedure 8(b), severance is mandatory. Joinder is improper unless
the parties are charged with offenses that are all part of the same series of acts or transactions. Hence, in United States v. Lane,76 the
denial of severance was reversible error because multiple parties were
joint participants in the offenses charged in some, but not all, of the
counts. 77 An overarching conspiracy will serve to connect each substantive count alleged as part of the common scheme or plan, but
offenses not encompassed within the conspiracy must have substantial
identity of participants with the other counts. 78
Even if defendants are properly joined under rule 8, the denial of
a severance under the discretionary provisions of Federal Rule of
Criminal Procedure 14 will constitute reversible error if joinder is so
prejudicial as to make denial of severance an abuse of discretion. To
demonstrate that level of prejudice, the defendant must show he received an unfair trail and must show compelling prejudice. 79 In the
73. Id.
74. 104 S. Ct. 2528 (1984). The Supreme Court concluded that to meet the standard of
constitutional materiality under Agurs, the "evidence must both possess an exculpatory value
that was apparent before the evidence was destroyed, and also be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably available
means." /d. at 2534. Mirroring the Fifth Circuit's analysis, the Court observed that the
chances were extremely remote that any preserved breath sample would have been exculpatory. /d.
75. Id. at 2535.
76. 735 F.2d 799 (5th Cir. June 1984).
77. Id. at 805-06.
78. Id. at 805.
79. See United States v. Loaiza-Vasquez, 735 F.2d 153 (5th CiT. June 1984), in which the
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case of claimed prejudice based on antagonistic defenses by the codefendants, a specific test is applied which requires the core or essence of
defenses to be so unreconcilable as to require the trier of fact to necessarily disbelieve one if it believes the other. The court split in United
States v. Romanello 80 on the issue of whether the respective defenses
of a trio of defendants jointly charged with theft, importation and
transportation of jewelry, as well as conspiracy were mutually exclusive or irreconcilable. At trial, defendant Vertucci claimed that he
had been robbed by his codefendants, Romanello and Mendez. 81 Vertucci's codefendants, on the other hand, claimed they had not stolen
the gold but had innocently accepted a job to transport it. 82 The
problem was that Vertucci did not identify Romanello and Mendez,
but his counsel accused them at trial. Contrary to the dissenting opinion's view that the identity of the robbers did not relate to the core of
Vertucci's defense of noninvolvement,83 the majority concluded that
Vertucci's claim necessarily forced the jury to decide that either Vertucci's defense or that of his codefendants was untrue. 84
C.
Jeopardy
The conspiracy to commit a substantive offense and the substantive offense itself are not the same offense for double jeopardy purposes, and thus separate convictions may be had for each. 85 If more
than one conspiracy is charged, however, the government must prove
a separate agreement for each conspiracy. Proof of the conspiratorial
agreement usually is by circumstantial evidence which must establish
separateness to avoid the double jeopardy prohibition against multiple
prosecutions for the same offense. The Fifth Circuit has identified five
focal points for that determination: (1) time-frames, (2) identity of
participants, (3) similarity of statutory object offenses, (4) overt acts
admissibilily of prior offense evidence againsl IWO bUI nOI all of the codefendants was not
sufficiently prejudicial to require severance when the complaining defendants were represented
by separate counsel and when the trial judge gave limiting instructions both before the evidence was introduced and in the jury charge. Id. at 159. See also United States v. Kimble, 719
F.2d 1253 (5th Cir. Oct. 1983) (defendant's burden "onerous").
80. 726 F.2d 173 (5th Cir. Feb. 1984).
81. Id. at 175.
82. Id. at 177.
83. Id. at 182.
84. The dissenting opinion seizes on the fact that accusations of counsel are not evidence.
[d. at 182-83. The majority takes the position that those accusations (or inferences) would
necessarily be considered by the jury. Id. at 181.
85. United States v. Kalish, 734 F.2d 194 (5th Cir. May 1984).
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in each alleged conspiracy, and (5) places where events in the conspiracies occurred. 86 Applying this focus the court found in United
States v. Winship 87 that rather than two conspiracies, the government
should have charged a single agreement to sell two drugs. 88
III.
GUILTY PLEAS
A defendant who has attested to the voluntariness of his plea at
the rule 11 hearing 89 has a heavy burden to establish otherwise on
appeal. A threat by the prosecution to prosecute a third party family
member unless the accused pleads guilty, poses a special risk of coercion; but that pressure in itself will not meet the burden of showing
involuntariness. The plea will be upheld if the threat of third-party
prosecution is made in good faith, to wit, if it is based on probable
cause. 90
Ordinarily, receipt of the indictment by the pleading defendant,
coupled with its reading and confirmation by the defendant of his understanding of each count at the rule 11 proceeding, will constitute
adequate notice of the nature of the charges. 91 An explanation of the
offense which furnishes the defendant with as complete an understanding as would be obtained from a reading of the indictment also
will suffice. 92 But a guilty plea colloquy that omits to advise the defendant of an essential element of an offense, either by reading the
indictment or by otherwise explaining the offense, will not satisfy the
trial judge's obligation under rule 11 to personally assure himself the
defendant understands the nature of the charge. In United States v.
Punch,93 the court reversed the trial court's denial of the defendant's
motion before sentencing, to withdraw his pleas because he was not
properly informed that knowledge was an element of the importation
of marijuana and cocaine offenses. 94 The defendant had entered a
86. United States v. Winship, 724 F.2d 1116, 1126 (5th Cir. Jan. 1984).
87. 724 F.2d 1116 (5th Cir. Jan. 1984).
88. [d. at 1127.
89. FED. R. CRIM. P. 11.
90. United States v. Diaz, 733 F.2d 371, 375 (5th Cir. June 1984) (quoting United States
v. Nuckols, 606 F.2d 566 (5th Cir. 1979».
91. See 733 F.2d at 374. Reading of the indictment may be by the judge himself or at his
direction. United States v. Dayton, 604 F.2d 931, 938 (5th Cir. 1979) (en bane), cert. denied,
445 U.S. 904 (1980). A mere reading of the indictment may, however, be insufficient in a
complex case. 604 F.2d at 938-39.
92. United States v. Punch, 709 F.2d 889, 894 n.6 (5th Cir. June 1983).
93. 709 F.2d 889 (5th Cir. June 1983).
94. [d. at 890.
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bargained "Alford" plea (guilty but maintaining innocence)95 to two
counts of a four-count indictment in return for which the government
agreed to move for dismissal of the other two counts. 96 Emphasizing
the unique nature of an Alford plea and its potential for confusion,
which apparently had arisen in Punch, the court counseled strict compliance with the minimum requirement of reading the indictment to
the defendant,97 The court stopped short of requiring more, but it
strongly suggested an additional explanation, even when the charge is
not complex, in order to ensure understanding of the plea. 98
A dual standard of review is applied to failure to comply literally
with rule 11. On collateral attack, the defendant ordinarily must
plead and prove actual prejudice, namely, that he would not have
pleaded guilty but for the technical violation of rule 1l,99 Hence, a
failure to explain to a pleading defendant the nature and consequences
of a special parole term, for example, a violation of rule 11 that likely
would require vacation of the plea on direct appeal, did not warrant
collateral relief in United States v. Saldana. loo On direct appeal, however, a technical violation may warrant relief without proof of actual
prejudice. 101 Elaborating on the harmless error standard in guilty
plea cases,102 the court in United States v. Punch 103 elucidated its
"core concern" analysis of rule 11 error. Earlier decisions had established the proposition that prejudice will be found to inhere in an "entire failure to address a core concern" of rule 11,104 and some cases
had suggested a flipside that merely "inadequate addresses" would be
subject to a harmless error standard. 105 The problem in Punch was
that the incomplete advice concerning the elements of the charge
could be characterized as merely inadequate because the charge obviously was mentioned and explained, albeit improperly. The court es95. See North Carolina v. Alford, 400 U.S. 25 (1970).
96. 709 F.2d at 891.
97. Id. at 894-95.
98. Id. at 895 n.12.
99. United States v. Timmreck, 441 U.S. 780, 783-85 (1979) (noting exceptions based on
constitutional or jurisdictional violations).
100. 731 F.2d 1192 (5th Cir. May 1984).
101. Id.atI193.
102. FED. R. CRIM. P. II(h).
103. 709 F.2d 889 (5th Cir. June 1983).
104. See United States v. Dayton, 604 F.2d 931 (5th Cir. 1979) (en bane), cere. denied,445
U.S. 904 (1980).
105. Wright v. United States, 624 F.2d 557, 560 (5th Cir. 1980); United States v. Caston,
615 F.2d 1111, 1115-16 (5th Cir.), cert. denied, 449 U.S. 831 (1980).
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chewed adoption of a mechanical rule based on technical adequacy in
favor of a test cast in terms of whether there has been full compliance
with rule 11. 106 It concluded that "inadequate address" of the elements of the charge was less than full compliance with rule 11 and
thus was an "entire failure to address a core concern, warranting automatic reversal of the conviction."107
IV.
RIGHT
To
COUNSEL
After years of refusing to address the proper standard for determining the constitutional adequacy of counsel, the United States
Supreme Court has spoken in Strickland v. Washington. lOB In doing
so, the Court affirmed the reasonably effective assistance test for counsel's performance applied by the Fifth Circuit. 109 The Court, however, rejected the Fifth Circuit's test of prejudice, a test the lower
court had forged after considerable debate and effort. 110 Under the
standard finally developed by the Fifth Circuit in Washington v.
Strickland, III to make a prima facie showing of ineffectiveness, the
defendant must show an "identifiable lapse" of counsel, and in addition, some "actual adverse impact on the fairness of his trial resulting
from [that] lapse."112 Once a prima facie case has been made, the
burden shifts to the government to establish that the constitutionally
deficient performance was, in light of all the evidence, harmless be106. 709 F.2d at 895-97.
107. Id. at 897. According to the court, under the Dayton mandate "the harmless error
standard may properly be applied to failures to address even core concerns, where these failures represent nothing more than purely formal, technical and insignificant deviations from the
requirments of Rule 11." Id. The court thus makes clear that the "entire failure" language of
Dayton is a term of art and that' compliance in substance rather than form is critical.
108. 104 S. Ct. 2052 (1984). The recent increased activity of the Supreme Court in the
assistance of counsel area appears to be a logical move by a Court that has emphasized the
reliability of convictions as the touchstone of review and the increasingly binding nature of
tactical decisions made by counsel at trial. The Court has been closing the door to consideration of issues not adequately preserved by counsel. See Baker, supra note I, at 181.
The Fifth Circuit rendered one significant right to counsel decision during the survey
period. In Ridgway v. Baker, 720 F.2d 1409 (5th Cir. Dec. 1983), the court found a due
process right to appointed counsel for an indigent in any contempt proceeding which could
result in imprisonment. The alleged contemner who is indigent cannot be committed without
having been afforded the right to appointed counsel. Id. at 1413.
109. 104 S. Ct. at 2064-65.
110. Id. at 2067-71. In Washington v. Strickland, 693 F.2d 1243 (5th Cir. 1982) (en bane),
rev'd, 104 S. Ct. 2052 (1984), the five separate opinions filed attest to the great struggle the
court had in defining an appropriate standard of prejudice.
Ill. 693 F.2d 1243 (5th Cir. 1982) (en bane), rev'd, 104 S. Ct. 2052 (1984).
112. Taylor v. Maggio, 727 F.2d 341, 347 (5th Cir. Feb. 1984).
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yond a reasonable doubt. I 13
The Supreme Court in Strickland v. Washington adopted a test
not unlike the Fifth Circuit's reasonably effective assistance standard. 114 The defendant making an ineffective representation claim
must identify specific acts or omissions which "are alleged not to have
been the result of reasonable professional judgment." I IS The court in
turn must determine whether those acts or omissions were outside the
wide range of professionally competent assistance, applying a strong
presumption that they were within that range. 116 This determination
involves a judgment of reasonableness under an ad hoc consideration
of the totality of representation. 117 Rejecting a guidelines approach to
the determination as an unsatisfactory means of taking into account
the unique circumstances and necessary tactical judgments in each
case, the Court states that the touchstone of the inquiry is the "adversarial testing process."U8 As elaborated in the companion case of
United States v. Cronic,119 the alleged professional incompetence apparently must be such as to reach a level of at least a partial breakdown of the adversarial process in the sense that the defendant's
attorney has abdicated his role as an advocate. 12o
The Fifth Circuit in Washington had determined that the proper
test of prejudice was whether counsel's errors "resulted in actual and
substantial disadvantage to the cause of his defense." 121 This approach was rejected by the Supreme Court in favor of an outcomeoriented standard. The appropriate test now is whether "there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different," or stated another way, whether the record reflects errors that would "undermine
113.
114.
lIS.
116.
117.
118.
119.
693 F.2d at 1258.
104 S. Ct. at 2064-65.
Id. at 2066.
Id.
Id.
Id.
104 S. Ct. 2039 (1984).
120. Id. at 2045-46. I am reminded of a law school instructor's answer concerning a difficult trial decision. The instruclor believed that we, as attorneys. should make judgments "consistent with principles of good advocacy," whatever those might be.
121. 693 F.2d at 1262 (Vance, J., concurring) (emphasis added). The court applied this
standard in Trass v. Maggio, 731 F.2d 288 (5th Cir. May 1984), reversing a district court
conclusion that a defendant making an ineffective assistance claim must show he probably
would not have been convicted if the alleged incompetence, failure to move for severance, had
not occurred, and the severance had been granted. Id. at 293-94.
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confidence in the outcome."122
In a post- Washington/Cronic case, the Fifth Circuit accepted the
Supreme Court's invitation to take the easier route of deciding the
prejudice question, thereby pretermitting the competence question.
The court found it unnecessary to decide in Gomez v. McKaskle,123
whether the decision by counsel not to call a codefendant to testify at
petitioner's possession of heroin trial "was a reasonable tactical choice
or an unreasonable lapse on the part of counsel."124 At a habeas
corpus evidentiary hearing the codefendant had testified that, despite
the advice of his attorney, he would have testified at trial that all the
heroin in the vehicle in which the petitoner was a passenger when
arrested belonged to him. 125 This testimony did not satisfy petitioner's burden of showing prejudice from counsel's failure to call the
codefendant because it was "equally possible" he would have taken
his attorney's advice and not testified. 126
Justice O'Connor's observation in Washington that the results of
few prior lower court rulings likely would be different under the new
test probably is accurate, because regardless of the test employed appellate courts have traditionally been reluctant to reverse convictions
on ineffectiveness grounds. In the first place, trial counsel have always been presumed to be competent. 127 In the second place, any
findings of facts by the trial court on the issue of competence are not
subject to review on habeas corpus unless clearly erroneous. 128 The
decisions rendered by the Fifth Circuit during the survey period bear
out Justice O'Connor's observation. The failure to call a witness on
the defendant's behalf may be ineffective assistance, at least when that
witness' testimony is not cumulative and may have been a substantial
cause of a hung jury in the first trial. 129 On the other hand, if a witness is not called as the result of a plausible defense strategy, and the
benefits of the expected testimony are speculative, no ineffectiveness
will be found. 130 Patently erroneous advice resulting from counsel's
ignorance of the law will constitute professional incompetence suffi122.
123.
124.
125.
126.
127.
128.
129.
130.
104 S. Ct. at 2068 (emphasis added).
734 F.2d 1107 (5th Cir. June 1984).
[d. at 1110.
[d. at 1108.
[d. at 1110.
E.g., Taylor v. Maggio, 727 F.2d 341 (5th Cir. Feb. 1984).
FED. R. CIV. P. 52(a); Autry v. McKask1e, 727 F.2d 358 (5th Cir. Mar. 1984).
Jackson v. McKask1e, 729 F.2d 356, 359 (5th Cir. Apr. 1984).
United States v. Cockrell, 720 F.2d 1423, 1428 (5th Cir. Dec. 1983).
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cient to establish a denial of the sixth amendment right to effective
assistance, if prejudice is shown. 131
There exist a limited number of contexts in which prejudice will
be presumed from professional incompetence. One situation is alleged
incompetence based on joint representation of conflicting interests
when an actual conflict adversely affecting the attorney's performance
exists. 132 In another case involving David Punch,133 who helped keep
the Fifth Circuit busy this survey period, the issue was effectiveness of
joint representation. When defense counsel attempted to withdraw on
the basis of conflict of interest weeks before the trial began, the trial
court's refusal to consider the allegation until the trial had begun was
held to violate the principle of Holloway v. Arkansas. 134 Moreover,
Federal Rule of Criminal Procedure 44 was violated because it requires the judge to promptly inquire into the joint representation and
to personally advise each defendant of the right to separate representation even if no conflict is asserted. 135 The judge did not. Automatic
reversal was required.
Situations which may be characterized as state interference with
counsel's effective assistance may also warrant application of a presumption of prejudice. 136 The court in United States v. Patterson 137
was unwilling to say that refusal to appoint a fingerprint expert for
the defense was not prejudicial. When the government's theory of a
case rests heavily on expert testimony, refusal to appoint an expert for
the defense to test the crucial element of the prosecution's case is a
denial of effective assistance. In Patterson the testimony of two eyewitnesses was inconsistent and not entirely conclusive. Three of the
131. Trass v. Maggio, 731 F.2d 288, 292-93 (5th Cir. May 1984) (failure on the part of
counsel to move for severance during trial because of erroneous understanding that antagonistic defenses is a ground for severance only before trial held to be ineffective assistance); Kennedy v. Maggio, 725 F.2d 269, 272 (5th Cir. Feb. 1984) (advice leading to a guilty plea that
death penalty avoidable when it had been effectively abrogated by the Supreme Court).
The Fifth Circuit decided that even though counsel competence in habeas corpus is not a
constitutional inquiry, the same standard of competence that is applied in the context of the
constitutional right should be applied to a lawyer's work in handling habeas petitions. Jones v.
Estelle, 722 F.2d 159, 167 (5th Cir. Dec. 1983) (en bane), cert. denied, 104 S. Ct. 2356 (1984).
132. See Cuyler v. Sullivan, 446 U.S. 335 (1980).
133. United States v. Punch, 722 F.2d 146 (5th Cir. Dec. 1983).
134. [d. at lSI (citing Holloway v. Arkansas, 435 U.S. 475 (1978». Holloway requires
that a request for separate counsel be granted when an attorney makes such a request based on
a conflict of interest. 435 U.S. at 484-86.
135. 722 F.2d at 152.
136. See United States v. Cronic, 104 S. Ct. 2039, 2046-47, n.25 (1984).
137. 724 F.2d 1128, 1131 (5th Cir. Jan. 1984).
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government's four remaining witnesses testified with regard to fingerprint evidence. The assistance of an expert would have facilitated the
defendant's ability to show either by cross-examination of the government expert or some other means that the latent palm prints lifted
from the crime scene were blurred. 138
A final note to Fifth Circuit assistance of counsel cases during
the survey period remains. In Wiggins v. McKaskle,139 on remand
from the United States Supreme Court, the Fifth Circuit affirmed the
district court's judgment denying habeas corpus relief to a petitioner
who claimed he was deprived of his right to self-representation by
unsolicited participation of standby counsel. In reversing the Fifth
Circuit decision, the Supreme Court promulgated a rule that the right
of a criminal defendant to conduct his own defense means a fair
chance to present his own case in his own way.l40 That right is not
violated so long as the pro se defendant retains actual control of the
case presented to the jury and standby counsel's participation is not
allowed to destroy the jury's perception that the defendant is representing himself. 141 The court found that although standby counsel's
participation was extensive, much of it occurred out of the presence of
the jury and in many instances it appeared counsel's activities were
either sought or acquiesced in by the defendant. This clearly unsolicited involvement of standby counsel was found to have been kept
within reasonable limits. 142 Therefore, the requirements of actual
control and the perception of self-representation were met.
V.
TRIAL RIGHTS I43
A.
Public Trial
It is now clear that the first amendment on behalf of the public
and press and the sixth amendment on behalf of the defendant estab[d. al 1130-31.
729 F.2d 1026 (5th Cir. Apr. 1984).
McKaskle v. Wiggins, 104 S. Ct. 944, 950 (1984), rev'g, 681 F.2d 266 (5th Cir. 1982).
104 S. Ct. at 951.
142. /d. al 953.
143. The court continues its struggle to define the proper standard of review of a trial
jUdge's finding that a prospective juror in a capital case is so opposed to the death penalty that
a challenge for cause must be granted. See O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. Aug.
1983). The United States Supreme Court may address the issue in Wainwright v. Witt, 714
F.2d 1069, 1076, modified, 723 F.2d 769 (11th Cir. 1983), cert. granted, 104 S. Ct. 2168 (1984).
138.
139.
140.
141.
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lish a presumption in favor of open criminal trials. l44 That presumption can be overcome and access may be barred only if an overriding
interest merits closure and the closure is only as broad as necessary to
serve that interest. 145 In Rovinsky v. McKaskle,146 the Fifth Circuit
found an unconstitutional denial of a public trial by a state trial
court's hearing in chambers of state motions to limit cross-examination of two witnesses, over defense objection. The court accurately
divined that the values of a public trial are fostered equally by extending the public trial right "to those pretrial hearings that are an
integral part of the trial, such as jury selection and motions to suppress evidence."147 The right does not depend on whether the issues
considered are factual or legal but whether they relate to the merits of
the case. The Rovinsky holding is consistent with the subsequently
decided Supreme Court decision in Waller v. Georgia 148 in which the
closure of a suppression hearing over objection was error in the absence of consideration by the judge of alternatives to closure and findings of fact establishing a need for closure.
The court in Rovinsky perhaps went further than required by setting aside the conviction. 149 Remand was deemed adequate by the
Supreme Court in a case in which an order suppressing completely a
transcript of a voir dire was not justified when the possibility existed
that a more narrowly tailored order would have been adequate to pro144. Press-Enterprise Co. v. Superior Court, 104 S. Ct. 819,822-24 (1984) (applying Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980».
145. One interest which may be served by closure is the prevention of prejudicial pretrial
publicity. See Gannett Co. v. DePasquale, 443 U.S. 368 (1979). That this interest may seldom
be compelling is indicated by decisions that mere knowledge of prior proceedings is not in itself
sufficient to disqualify a prospective juror. See United States v. O'Keefe, 722 F.2d 1175, 117980 (5th Cir. Dec. 1983) (mere awareness of the allegations or facts to be presented but no
knowledge of the result of the first trial does not constitute prejudice sufficient to disqualify a
juror at the second trial).
146. 722 F.2d 197 (5th Cir. Jan. 1984).
147. [d. at 201. Mere sidebar conferences would be excluded. Id. In United States v.
Chagra, 701 F.2d 354 (5th Cir. 1983), the court had been faced with the issue whether the trial
court's closure of a pretrial bail reduction hearing at the request of the defendant violated the
first amendment right of public access. The court held that under the "overriding interest
articulated in the findings" test of Richmond Newspapers, a defendant seeking closure overcomes the first amendment right of access to the hearing if he shows his right to a fair trial
would likely be prejudiced by a public hearing, alternatives to closure adequately protecting his
fair trial right do not exist, and closure will probably protect against the perceived danger of
prejudice. [d. at 364-65.
148. 104 S. Ct. 2210 (1984).
149. 722 F.2d at 202 (Jolly, J., dissenting).
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tect privacy interests. ISO Additionally, in the case of an improperly
closed suppression hearing, remand was ordered for the purpose of
conducting a new suppression hearing which complied with constitutional standards. lSI
Another aspect of the fair trial-free press issue was presented by
the district court's order in United States v. Harrelson,ls2 which restricted post-verdict interviews with discharged jurors. An earlier order of the court based on a local court rule prohibited any contact
with discharged jurors concerning the jury's deliberations, except
with leave of court on good cause. IS3 That order subsequently was
withdrawn on the basis of the intervening Fifth Circuit decision holding unconstitutional the local rule and the court's order enforcing
it. ls4 The new order, while not prohibiting contact, limited proposed
interviews by prohibiting repeated requests for interviews from jurors
requesting not to be interviewed and by forbidding inquiry into specific votes by other jurors. ISS This modified order, even though entered without a hearing, was upheld as a justifiable means of
preventing a substantial threat to administration of justice; it was tailored narrowly enough to serve the respective interests of jury privacy
and freedom from harassment as well as the common law privilege
against forced disclosure of the particulars of jury deliberation. ls6
B.
Confrontation
One important aspect of the sixth amendment right of confrontation is the defendant's right to be present during the trial. IS7 A conviction of conspiracy to transport illegal aliens was vacated and
remanded in United States v. Beltran-Nunez ls8 because of inadequate
protection of that right by the trial judge. The failure of the trial
judge to make inquiry into the reasons for the defendant's absence
made the decision to proceed an abuse of discretion. Prior Fifth Circuit precedent's narrow circumspection of discretion made a finding
of voluntary absence in itself insufficient and mandated an on-the-rec150.
151.
152.
153.
154.
155.
156.
157.
158.
Press-Enterprise Co. v. Superior Court, 104 S. Ct. 819, 824-26 (1984).
Waller v. Georgia, 104 S. Ct. 2210, 2217 (1984).
713 F.2d 1114 (5th Cir. Sept. 1983), cert. denied, 104 S. Ct. 1318 (1984).
Id. at 1115.
In re Express-News Corp., 695 F.2d 807 (5th Cir. 1982).
713 F.2d at 1115·16.
Id. at 1118.
Illinois v. Allen, 397 U.S. 337 (1970). See a/so FED. R. CRIM. P. 43(a).
716 F.2d 287 (5th Cir. Sept. 1983).
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ord consideration whether the trial could soon be rescheduled, taking
into account the explanation of the absence, the length of delay required, and the inconvenience or prejudice resulting from delay.159
The majority concluded that the absence of an inquiry as to whether
the trial could soon be rescheduled was not excused by the subsequent
discovery that defendant was a fugitive during his absence,l60 a fact
which the dissenting judge, on the other hand, would view as a clear
waiver of the right to be present. 161 Objecting to a perceived
hypertechnical and overrigid application of the inquiry rule, the dissent would require at least a showing of prejudice from the trial
court's omission. 162
Limitation of defendant's cross-examination of a prosecution witness may reach the level of a violation of the right of confrontation, as
illustrated by Carrillo v. Perkins. 163 The trial judge in that case had
refused questioning concerning unadjudicated offenses committed by
the witness, although it had allowed inquiry into personal animosity
between the witness and the defendant. l64 The state appellate court
found no reversible error because defendant was not precluded from
inquiring about promises or agreements between the state and the witness, and because no evidence of a deal was adduced, any pressure the
witness would have felt to testify favorably for the state was speculative. 165 The Fifth Circuit concluded that disallowing counsel's indirect means of raising an inference of fear of prosecution by the witness
and a desire to curry favor with the state constituted a denial of the
right of confrontation. 166 Apparently the defendant must be allowed
to make inquiry into any matter that raises a real possibility of prejudice or motive to fabricate. 167 The court agreed with the state, however, that the confrontation error was harmless. 168 The court
expressed doubts about the distinction in the prior cases between
complete denial of cross-examination, which presumably cannot be
harmless error, and merely a partial restriction, which may be harm159.
160.
161.
162.
163.
164.
165.
166.
167.
168.
Id. at 290-91 (citing United States v. Benavides, 596 F.2d 137, 139 (5th CiT. 1979».
716 F.2d at 291.
Id. at 292-93 (Jolly, J., dissenting).
Id. at 293 (Jolly, J., dissenting).
723 F.2d 1165, 1170 (5th CiT. Jan. 1984).
Id. at 1166-67.
Id.
Id. at 1168-69.
See Davis v. Alaska, 415 U.S. 308, 316 (1974).
723 F.2d at 1173.
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less. 169 Nonetheless, with a nod to its duty to adhere to a prior panel's
decision absent an intervening decision of the court en banc or the
Supreme Court, the court found the restriction was "partial."170 It
concluded the restriction was harmless beyond a reasonable doubt because even without the testimony of the witness in question, evidence
of guilt was overwhelming. 171
VI.
A.
EVIDENCE
Search and Seizure
The considerable activity by the United States Supreme Court in
the fourth amendment area was matched by the Fifth Circuit during
the survey period. The signals from the High Court were often less
than clear. In
1.
Fourth Amendment Activity
A threshold requirement of any fourth amendment claim is governmental conduct amounting to a "search" or "seizure." Whether
fourth amendment activity to which constitutional constraints apply
has occurred is determined by application of the now famous (or infamous) "expectation of privacy" test of Katz v. United States. 173 The
most significant case of the period involving this question was United
States v. ButtS. 174 There the Fifth Circuit directly confronted the pre169.
170.
171.
172.
[d. at 1170-72.
[d. at lIn.
[d. at 1173.
See United States v. Garcia, 719 F.2d 108, 109 (5th Cir. Nov. 1983), in whi~h the
judges of the Fifth Circuit are at a complete loss concerning what the High Court intended by
its remand for further consideration in light of United States v. Ross, 456 U.S. 798 (1982). In
its original opinion, the Fifth Circuit had invalidated a search incident to an arrest because the
arrest was determined as outside a game warden's authority under Texas law. Ross involved
the permissible scope of an automobile search.
173. 389 U.S. 347 (1967). In United States v. Hultgren, 713 F.2d 79,83 n.6 (5th Cir. Aug.
1983), the court noted that standing in fourth amendment cases is no longer an issue separate
from that of whether the defendant had a "legitimate expectation of privacy" in the area
searched or the thing seized. Rakas v. Illinois, 439 U.S. 128 (1978), collapsed the distinction
between the two concepts.
174. 710 F.2d 1139 (5th Cir. Aug. 1983). Another decision relevant to the issue of
whether a "search" has occurred is United States v. Marbury, 732 F.2d 390 (5th Cir. May
1984). The "open-fields" doctrine, reaffirmed and explained by the United States Supreme
Court in Oliver v. United States, 104 S. Ct. 1735 (1984), was cited as an alternative ground for
upholding a search allegedly beyond the scope of a warrant and a helicopter overflight of a
commercial gravel pit. 732 F.2d at 396.
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viously undecided issue of the legality of the warrantless installation
of an electronic tracking device ("beeper") inside a vehicle.
In Butts, the government had obtained a warrant to install an
electronic tracking device ("beeper") in an aircraft but had failed to
remove the beeper when the order expired. 175 By tracking the signal
emitting from the beeper, U.S. Customs agents were able to intercept
the aircraft and seize its marijuana cargo. 176 A split panel affirmed
the district court's suppression of the evidence with a majority opinion by Judge Goldberg containing an extensive review of "beeper jurisprudence."177 The Fifth Circuit decisions were read by Judge
Goldberg as approving warrantless attaching of tracking devices to
the exterior of vehicles because the installation was not fourth amendment activity, that is, not a "search."178 The leading Supreme Court
beeper decision, United States v. Knotts,179 addressed only the issue of
monitoring, not installation. 180 The Court held that monitoring
beeper signals was neither a "search" nor a "seizure" but was akin to
an enhanced view of movements in which the defendant had no reasonable expectation of privacy. 181 In Knotts, however, the Supreme
Court clearly indicated a distinction between installation of the device
and monitoring its signal. Using this bifurcated approach,182 Judge
Goldberg concluded that the beeper installation, which involved an
intrusion into the interior of the aircraft, was a "search." 183 Although
an individual may have only a "diminished expectation of privacy" in
vehicles, he nonetheless has a legitimate expectation in those parts of
a vehicle that are at least "somewhat sheltered from public view and
unexposed to public contact."184 Thus, a warrant was necessary for
installation and the continued presence of the beeper in the aircraft. 185
175. 710 F.2d at 1140-41.
176. ld. at 1141.
177. ld. at 1143-45.
178. ld. at 1144.
179. 460 U.S. 276 (1983).
180. See id. at 281-82.
181. ld. at 284-85.
182. 710 F.2d at 1145-46.
183. ld. at 1147.
184. ld. at 1149.
185. The decision in Butts received indirect confirmation from the subsequent Supreme
Court decision of United States v. Karo. 104 S. Ct. 3296 (1984) in which the Court condemned
the warrantless monitoring of a beeper inside a house. Knotts was distinguished on the ground
that everything monitored in that case was otherwise subject to public view.
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293
Probable Cause
The Court applied the new standard of Illinois v. Gates 186 for
evaluating the sufficiency of a warrant affidavit in several cases. 187
The following rules may be extrapolated from Gates: (1) probable
cause to conduct a search exists when the facts and circumstances
described in the affidavit indicate a "fair probability" that evidence of
a crime will be located on the premises of the proposed search; (2) the
warrant affidavit is to be evaluated in a realistic and common sense
fashion by reference to the "totality of the circumstances," including
the veracity and basis of knowledge of persons supplying hearsay information; (3) affidavits in support of an application for a search warrant are to be reviewed by both courts and magistrates in a realistic
and common sense fashion; and (4) a magistrate's determination
should be accorded great deference and should be upheld if there is a
"substantial basis" supporting the conclusion to issue the warrant. In
other words, the magistrate's determination should be disturbed only
if arbitrarily exercised.
In adopting the totality of circumstances approach, the Supreme
Court rejected the two-pronged test of the "sufficiency of an informant's tip" which would require facts showing both the informant's reliability and the basis of the informant's knowledge. 188 The veracity
and basis of knowledge elements are no longer independent and mutually exclusive requirements but are merely "highly relevant" considerations in determining the overall reliability of a tip.189 A sliding-scale
approach is used-information allowing only a weak inference of an
informant's veracity may be compensated by a strong showing of basis of knowledge or by some other indicia of reliability, including independent corroboration of information by the police. 190 In United
States v. Phillips,191 for example, the tip of an informant, identified as
the suspect's wife, whose motives were questionable, was nonetheless
held sufficient because of the explicit detail of the tip. No facts at all
indicating the potential veracity of an anonymous tipster were avail186. 103 S. Ct. 2317 (1983).
187. Gates was held to apply retroactively to all nonfinal convictions in United States v.
Mendoza, 727 F.2d 448 (5th Cir. Mar. 1984).
188. For a case applying the two-pronged test of Spinelli v. United States, 393 U.S. 410
(1969) to uphold a warrant during the survey period, see Christian v. McKaskle, 731 F.2d
1196 (5th Cir. May 1984) and Aguilar v. Texas, 378 U.S. 108 (1964).
189. lIIinois v. Gates, 103 S. Ct. 2317, 2327 (1983).
190. See Massachusetts v. Upton, 104 S. Ct. 2085, 2087 (1984) (per curiam).
191. 727 F.2d 392 (5th Cir. Mar. 1984).
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able to the government agents in United States v. Mendoza. 192 Unlike
the tip in Phillips, however, the tip in Mendoza, that a named individual would be moving a cocaine shipment during the holidays from
New Orleans to Miami, was noticeably lacking in detail. Nevertheless, the government agents were found to have had probable cause to
stop and search the defendant's automobile because their surveillance
of the named individual revealed a series of acts, albeit noncriminal
and in themselves consistent with innocent behavior, that "combined
with the tip to reach a point where a reasonable and cautious man
could believe that a criminal course of conduct was substantially more
likely than an innocent one."193 Among the facts observed were the
suspect's evasive movements in a manner calculated to elude surveillance, contacts with persons from Miami, and his presence for a fortyfive minute period inside a closed warehouse into which an auto with
Florida tags had been driven. The identity and address of the suspect,
the time frame, and a Florida connection were established by the surveillance, all of which corroborated the informant's tip.194 Even
under the softer Gates standard, however, an affidavit was found insufficient in United States v. Kolodziep 95 to support a warrant to
search a home for narcotics when the affidavit provided neither the
facts showing how the informants knew narcotics were in the houses
nor independent police corroboration of the conclusory tip.196 The
lack of a factual basis for crediting the informant's conclusion was not
compensated by a strong showing of reliability: there was no allegation that the informants were known to be reliable and the fact that
the statements arguably were against the informants' penal interest
was entitled to little weight in view of their obvious interest in currying favor with the authorities. 197
3.
Exigent Circumstances
Under well-established constitutional dogma, a warrantless
search is improper unless the government establishes exigent or exceptional circumstances which excuse the absence of a warrant. 198
The time required to get prior magisterial approval of a search may
192.
193.
194.
195.
196.
197.
198.
722 F.2d 96 (5th Cir. Dec. 1983).
[d. at 102.
[d.
712 F.2-'l 975 (5th Cir. Aug. 1983).
[d. at 977.
/d. at 977-78.
Katz v. United States, 389 U.S. 347 (1967).
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.excuse the failure to obtain a traditional warrant but under federal
practice, it also must make recourse to a telephone warrant unavailable. 199 The Fifth Circuit has concluded that in assessing exigencies, a
trial court should consider the time needed to obtain a telephonic
warrant and the government should make a factual record on the time
required to obtain, and the availability of, a telephonic warrant. 2OO
Such proof is unnecessary, however, when exigencies are "so imperative that recourse to even a telephone warrant was unavailable. "201
Such a case was presented when the record indicated that the suspects
might return anytime to the suspected drug lab, approaching darkness
threatened the ability to maintain close surveillance in the rurallocation, four of the occupants had firearms which raised the possbility of
a gunfight if they became alarmed, and the real possibility of an explosion existed in view of the difficulties the officers learned were being
experienced with the volatile chemicals in the manufacturing
process. 202
An unexplained failure of a transmitter was ruled a sufficient exigency in United States v. Huitgren 203 because it created a genuine immediate concern for the safety of the "wired" undercover informant
and those agents surrounding the house where an illicit drug transaction was to be finalized. Moreover, the transmitter failure raised the
possibility that evidence would be destroyed if an entry were not made
promptly. The foreseeability of the exigency did not make it government-created, nor did the prior existence of probable cause to arrest
one of the parties for conspiracy vitiate the exigency for his warrantless arrest for a different, albeit related offense. 204 Delaying an arrest
is reasonable if for the purpose of discovering additional participants
or evidence.
4.
Border Searches
As usual, the court was confronted with its share of border
search problems. A recurring issue is whether sufficient specific ar199.
200.
United States v. Berick, 710 F.2d 1035 (5th Cir. July 1983).
Id. at 1038.
201. Id. at 1039.
202. Id. The trial judge's factual determination of exigency is to be reviewed under the
patently erroneous standard. United States v. Thompson, 720 F.2d 385 (5th Cir. Nov. 1983)
(findings on remand that informant was in danger because he had caused the arrest of a defendant and that codefendant might destroy evidence not clearly erroneous).
203. 713 F.2d 79 (5th Cir. Aug. 1983).
204. Id. at 85-88.
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ticulable facts exist in the context of nonborder stops to justify an
objectively reasonable suspicion of criminal activity. The fact-specific
cases have resulted in "an unsteady calculus of what factors may permissibly be considered when determining whether border patrol
agents have an objectively reasonable suspicion to make a stop. "205 In
the case of a stop on suspicion of illegal entry and smuggling, a
threshold element is reason to believe the vehicle had come from the
border.
The most critical element is factual information providing a basis
for a reasonable belief that the vehicle had come from the border. But
even absent such a grounded belief, other articulable facts may warrant a reasonable suspicion after a "char[y]" review under a "totality
of circumstances" approach. 206 A roving patrol stop 115 miles from
the United States-Mexican border was upheld in United States v. Garcia 207 based on the vehicle's overloaded appearance, the history of
alien smuggling in the area, the lateness of the hour, the unusually
slow speed of the vehicle, and the suspicious actions of the vehicle's
unwashed occupants, coupled with the agent's specialized experience
and training. A strong dissent accused the majority of converting
slight circumstances, each in themselves just as consistent with innocent conduct as with culpable conduct,208 into reasonable suspicion
largely because of the agents' subjective conclusions concerning the
occupants' motives. 209
On the other hand, a stop sixty miles from the Mexican border
was condemned in United States v. Melendez-Gonzalez 21O when the
officers at most relied on the circumstances that the vehicle was
travelling north on a highway known to be a smuggling route, and
that it was the low riding car in the lead car-load car tandem configur205. United States v. Garcia, 732 F.2d 1221, 1229 (5th Cir. May 1984) (Tate, J.,
dissenting).
206. United States v. Pena-Cantu, 639 F.2d 1228, 1229 (5th Cir. 1981).
207. 732 F.2d 1221 (5th Cir. May 1984).
208. 732 F.2d at 1228. (Tate, J., dissenting). But see Illinois v. Gates, 103 S. Ct. 2317
(1983) (nonsuspicious or otherwise innocuous conduct may figure in the probable cause
determination).
209. The legality of a stop cannot depend on the officer's subjective reasons for his actions,
see United States v. Melendez-Gonzalez, 727 F.2d 407 (5th Cir. Mar. 1984), but the officer's
experience and training can be taken into account. The important factor is whether the officer's training and experience legitimizes the inference he subjectively draws from the facts.
[d. By analogy, a foundation for the officer's "expert testimony" must be laid.
210. 727 F.2d 407 (5th Cir. Mar. 1984).
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ation. 211 The absence of other connecting factors left the observed
circumstances too ambiguous to provide a reasonable basis for a
stop.212 A nonborder stop was upheld, again over a dissent, in United
States v. Salazar-Martinez. 213 The stop was justified by the officer's
observation of several extremely unkempt persons of Mexican descent
in a 1973 large, luxury Lincoln with two persons occupying the extreme corners of the back seat and three persons in a semiconcealed
position kneeling on the floorboard of the vehicle?I4 Although the
majority acknowledges that unusual activity or mode of travel does
not in itself warrant a reasonable suspicion, the "unique and concealing nature of the posture" of the passengers in this case, along with
the other factors made this more than a case based solely on the "ophthalmological reactions" of the suspect. 215
The conclusion is difficult to resist that in the reasonable suspicion-stop cases, carefully prepared testimony by the agent is the ultimate key to justifying the stop.
5.
Good Faith Exception
Commenting in last year's symposium on the impact of Fifth
Circuit decisions on Supreme Court jurisprudence, Mr. Justice
White 216 noted particularly the circuit's decision of United States v.
Williams,217 which had adopted a good faith exception to the exclusionary rule. Williams was cited by Justice White as an important
consideration in the Supreme Court's decision to address during the
1983 term the issue of modifying the exclusionary rule. The approach
of the Fifth Circuit has been vindicated by the United States Supreme
Court. In Massachusetts v. Sheppard,218 the Supreme Court held that
the exclusionary rule does not require exclusion of evidence obtained
by police pursuant to a warrant subsequently invalidated because of a
technical error on the part of the issuing officer. The Supreme Court,
however, went a step further than the Fifth Circuit had been willing
211. !d. at 409.
212. [d. at 412.
213. 710 F.2d 1087 (5th Cir. Aug. 1983).
214. [d. at 1087-88.
215. See United States v. Pacheco, 617 F.2d 84, 86-87 (5th Cir. 1980) (stating the view of
the Fifth Circuit that nervous glances or failure to maintain eye contact is insufficient to justify
a reasonable suspicion).
216. White, Dedication, Fifth Circuit Symposium, IS TEX. TECH L. REV. ix (1984).
217. 622 F.2d 830 (5th Cir. 1980) (en bane), cert. denied, 449 U.S. 1127 (1981).
218. 104 S. Ct. 3424 (1984).
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to go. The Fifth Circuit had declined to rule that the good faith exception would apply to actions of the police not supported by an underlying probable cause. 219 But in United States v. Leon,220 the
United States Supreme Court upheld use of evidence obtained by law
enforcement officers acting in objectively reasonable reliance on a
search warrant ultimately found to be unsupported by probable cause.
Significant as it is, the good faith exception may not be the highwater
mark of the incremental limits on application of the exclusionary rule.
Signs are the water will keep rising. 221
6.
Confessions
United States v. Cherry 222 involved the admissibility of incriminating statements of an accused to FBI agents which were used to
convict him of murder. After signing a written waiver of Miranda 223
rights, the defendant responded to questions concerning his whereabouts on the night of the killing. 224 When confronted with inconsistencies in his story and evidence that tended to connect him with the
murder, he became increasingly nervous and finally said, "[M]aybe I
should talk to an attorney before I make a further statement."225 Instead of putting the defendant immediately in touch with an attorney,
the interrogating agents told the accused that an attorney probably
would advise him to remain silent and asked him whether he wanted
to be left alone to think about it. 226 The accused asked to see his
sergeant, but after aborted efforts to comply with his request, he was
confronted with evidence that he had been seen in possession of a .32
caliber handgun which he had earlier denied having. After this confrontation he told the agents where they could find the gun and on
further prodding proceeded to tell the "true story. "227 The Fifth Circuit held that Cherry's confession was obtained in violation of Mi219. See United States v. Parker, 722 F.2d 179, 183 n.2 (5th Cir. Dec. 1983); United States
v. Mahoney, 712 F.2d 956, 960 n.4 (5th Cir. Aug. 1983) (arrest warrant invalid because it did
not describe arrestee with sufficient particularity).
220. 104 S. Ct. 3405 (1984).
221. See, e.g., Nix v. Williams, 104 S. Ct. 2501 (1984) (approving the "inevitable discovery" limitation on the "fruit of the poisonous tree" doctrine).
222. 733 F.2d 1124 (5th Cir. May 1984).
223. Miranda v. Arizona, 384 U.S. 436 (1966).
224. 733 F.2d at 1126-28.
225. Id. at 1127.
226. Id.
227. Id. at 1127-28.
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randa. 228 Under the circuit's Nash rule,229 as reinforced by recent
Supreme Court precedent,230 an equivocal request for counsel triggers
a duty on the part of the interrogating officers to cease the interrogation unless they ask further questions limited solely to clarifying
whether the suspect wants to consult with counsel before continuing
the interrogation. In finding the Nash rule violated, the court noted
that the agents in this case failed to clarify whether Cherry wanted the
interrogation to resume without counsel, contrary to the Supreme
Court's warning that every reasonable presumption against waiver is
to be indulged. 231 Most critical, however, was that after the equivocal
request, the confession was not volunteered but was in response to
questions posed by the interrogators "to coax a confession from
Cherry. "232
During the survey period, the court declined to decide whether
the presentencing interview was a critical stage implicating the right
to presence of counse1. 233 It did find, however, that Miranda does not
apply to preliminary routine inquiries at national borders. 234
B.
Hypnotically-Induced Testimony
The Fifth Circuit addressed an issue that has arisen frequently in
recent years-whether hypnosis may be used to refresh the memory
228. [d. at 1129.
229. Nash v. Estelle, 597 F.2d 513, 517 (5th Cir. 1979) (en bane). See also Thompson v.
Wainwright, 601 F.2d 768, 771-72 (5th Cir. 1979) (clarification of Nash).
230. See Oregon v. Bradshaw, 103 S. Ct. 2830, 2834 (1983) (defendant expressing a desire
for counsel is not subject to further interrogation until counsel is made available unless the
accused himself initiates further communication) (quoting Edwards v. Arizona, 451 U.S. 477,
484-85 (1981».
In Solem v. Stumes, 104 S. Ct. 1338 (1984), a majority of the Court emphasized that
Edwards established a per se rule that once a suspect has expressed a desire to speak with
counsel a waiver of the right to counsel, no matter how voluntary, can never be valid if made
in response to further police questioning. [d. at 1343-44.
231. See Brewer v. Williams, 430 U.S. 387,404 (1977), reh'g denied, 431 U.S. 925 (1977).
232. 733 F.2d at 1131. See supra note 230. The trial court's finding that Cherry had
initiated the subsequent conversation with the agents was clearly erroneous. For another application of the Nash and Edwards cases, see United States v. Walker, 710 F.2d 1062 (5th Cir.
July 1983), cert. denied, 104 S. Ct. 995 (1984).
233. United States v. Dickson, 712 F.2d 952 (5th Cir. Aug. 1983).
234. United States v. Mejia, 720 F.2d 1378 (5th Cir. Nov. 1983); cf New York v. Quarles,
104 S. Ct. 2626 (1984) (engrafting an emergency public safety exception onto the Miranda
doctrine). By analogy to the exigent circumstances doctrine in fourth amendment law, the
Court found that questioning about the location of a gun without Miranda warnings was justified by a public threat which outweighed, in the specific circumstances, the need to protect fifth
amendment values.
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of a witness and whether a previously hypnotized witness may testify
at trial. In United v. Valdez,235 the Fifth Circuit reviewed the various
approaches that have been taken by other courts, ranging from a per
se prohibition to permitting testimony subject to employment of procedural safeguards. 236 A cautious court took the middle ground,
holding that a witness who was unable to identify a suspect prior to
hypnosis could not make a posthypnotic identification, but left open
other questions regarding the use of hypnosis. 237 The defendant had
been convicted of extortion, in part on the testimony of an officer who
was unable to identify the defendant, until after undergoing hypnosis
before trial. The officer was the only person who identified the defendant as being at the scene of the drop site. 238 The court refused to
adopt a per se rule for cases not involving personal identification but
suggested instead that corroborated post-hypnotic testimony may be
admissible in those cases if adequate procedural safeguards have been
followed. 239 But posthypnotic testimony is automatically excluded in
a case like Valdez: an identification of a person known by the witness
to be under suspicion when the witness has been unable to identify
that person before being hypnotized. 240
C.
Extrinsic Offenses
A common claim of error is the admission of an extrinsic offense,
that is, criminal misconduct not charged in the indictment. To resolve the issue, the Fifth Circuit utilizes the Beechum 241 two-pronged
inquiry which reflects the limitations of Federal Rules of Evidence
403 and 404(b). That analysis requires the district court to determine
first that the evidence is relevant to an issue other than the character
of the defendant, and second that the probative value of the evidence
is not substantially outweighed by undue prejudice. 242 A corollary to
the analysis is a reasonable basis for finding that the extrinsic offense
in fact occurred. 243 Applying the Beechum standard in United States
235. 722 F.2d 1196 (5th Cir. Jan. 1984).
236. ld. at 1198-1200.
237. ld. at 1203.
238. /d. at 1198.
239. ld. at 1203.
240. See supra note 237 and accompanying text.
241. United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en bane), cert. denied, 440
U.S. 920 (1979).
242. ld. at 914, 916-17.
243. ld. at 912-13.
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v. Walker,244 the court allowed an alleged coconspirator in a scheme
to intimidate a prospective witness to testify as to the defendant's admissions of prior involvement in acts of violence and a specific instance in which he had accompanied drug dealers as armed
protection. 245 The evidence was found to be probative of the controverted issues of knowledge and conspiratorial agreement. Under the
sliding-scale approach, as the incremental probity of the evidence diminishes the amount of prejudice required to suppress the evidence
diminishes commensurately.246 The defendant's bragging about prior
acts of violence was a close call. It was incrementally less probative
than the evidence of willing association with persons later involved in
the conspiracy. Moreover, it implied that the defendant was involved
in serious criminality, thereby increasing its prejudicial impact. 247
However, the prejudicial effect was lessened because the evidence was
offered only to prove the remarks were made, not that the defendant
actually did do those acts. 248
VII.
SUBSTANTIVE LAW
The President's would-be assassin, John Hinckley, obviously was
on the court's mind in United States v. Lyons. 249 In a majority opinion seen by a substantial minority of the court as an unnecessary overreaction to the current status of the insanity defense,25o the court
redefined the scope of the defense for the circuit. The defendant attempted to offer evidence of involuntary drug addiction and brain
damage caused by the addiction to establish the defense that he lacked
substantial capacity to conform his conduct to the requirements of the
244. 710 F.2d 1062 (5th Cir. July 1983).
245. Id. at 1064.
246. Id. at 1067-68.
247. Id.
248. For examples of other cases involving extrinsic offenses, see United States v. Wilson,
732 F.2d 404 (5th Cir. May 1984) (probative value evident and extrinsic acts "sufficiently
proximate" to offenses charged); United States v. Smith, 726 F.2d 183 (5th Cir. Feb. 1984)
(although prejudicial, extrinsic offense evidence admissible because clearly probative); United
States v. Kimble, 719 F.2d 1253 (5th Cir. Oct. 1983) (ambiguous and limited evidence of prior
offenses rendered harmless by prompt curative instruction); United States v. LeMaire, 712
F.2d 944 (5th Cir. Aug. 1983) (any error was harmless due to overwhelming evidence of guilt);
United States v. Simpson, 709 F.2d 903 (5th Cir. June 1983) (uncharged offense part of same
transaction as offense charged not "extrinsic").
249. 731 F.2d 243 (5th Cir. Apr. 1984) (en bane). See id. at 249 n.13 in which the court
noted that the "jury surprised everybody by taking the law seriously and finding him [Hinckley] not guilty."
250. Id. at 250 (Rubin, J., dissenting).
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law. The court reaffirmed its position that mere narcotics addiction is
not a mental disease or defect that will support the defense of insanity.25t The evidence of physiological damage to the brain
presented by the defendant, however, should have been submitted to
the jury on the issue of insanity. But in a bold move, the court conduded that the defendant on retrial must have the evidence submitted
under a new, pared-down insanity test. The premise underlying its
prior formulation of the defense- 252 that impairment of capacity for
self-control can be scientifically measured-is no longer justified, if it
ever was. According to the court, the volitional prong of the insanity
defense creates confusion and imposes an impossible burden of proof
on the prosecution. 253 Hence, the insanity defense for the circuit is
recast solely in cognitive terms-whether, at the time of the conduct
charged, as a result of mental disease or defect, the defendant is unable to appreciate the wrongfulness of his conduct.
In a separate opinion, a substantial minority of the en bane court
concluded that the defendant's evidence raised nothing more than a
claim of addiction, an inherent aspect of which is physiological impact on the brain, and thus would affirm the district court. This view
of the case made reconsideration of the insanity definition unnecessary. Moreover, the current controversy over the insanity defense and
the possibility of Congressional action made reconsideration
inappropriate. 254
The Fifth Circuit has steadfastly adhered to its sometimes criticized position that a defendant cannot rely on the entrapment defense
unless the acts constituting the crime charged are admitted. 255 The
rationale of this position is the inconsistency in claiming both "I
didn't do it" and "the government induced me to do it."256 Two lines
251. [d. at 245-46. See Bailey v. United States, 386 F.2d I (5th Cir. 1967), cert. denied,
392 U.S. 946 (1968).
252. Blake v. United States, 407 F.2d 908, 915 (5th Cir. 1969) (en bane) (consistent with
the other federal circuit courts adopting ALI/Model Penal Code test of insanity containing
both a cognitive and volitional component).
253. 731 F.2d at 249. The problem for the court is that federal law requires the prosecution to prove the absence of insanity beyond a resonable doubt. This was the critical factor in
John Hinckley's acquittal of the attempted assassination of the President. [d. at 249 n.13.
Hence, as to the volitional aspect, the government must prove the unprovable.
254. [d. at 250-55. In a separate dissent, Judge Johnson argued that Lyons should have
been permitted to submit his defense under existing precedent. [d. at 253-54. Judge Rubin
reserved the right to file a dissent from an insanity test that would have the effect of convicting
persons who lacked ability to conform their conduct to the law. [d.
255. See United States v. Henry, 727 F.2d 1373, 1376 (5th Cir. Mar. 1984).
256. United States v. Brooks, 611 F.2d 614, 618 (5th Cir. 1980).
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of authority have developed, however, concerning the availability of
entrapment as a defense in cases in which the defendant admits the
factual acts but denies a culpable intent. A split panel of the court in
United States v. Garrett 257 read Fifth Circuit precedent as establishing
that a claim of entrapment is not necessarily inconsistent with a denial
of the crime based on the absence of the culpable mental state if the
criminal act is admitted. The panel in United States v. Henry,258 on
the other hand, found denial of the intent element just as inconsistent
with a claim of entrapment as denial of the act, because a criminal act
is not criminal unless it is committed with the requisite culpability.
The controversy appears to stem from a differing conceptual view of
the entrapment defense. The Henry panel perceives the entrapment
defense as basically a claim that the government "implanted" the
criminal intent that the defendant admittedly had at the time of the
act. The Garrett majority, on the other hand, views the defense as a
claim that the criminal intent, if it existed, was in fact that of the
government and not that of the defendant. The issue is one which
likely will be resolved by the full en banc court.
VIII.
ApPELLATE REVIEW
The Fifth Circuit recently rejected a special standard of review in
circumstantial evidence cases which required the government's case
to be inconsistent with every reasonable hypothesis of innocence. 259
Sufficiency in any case is measured by whether "the total evidence,
including reasonable inferences, is sufficient to warrant a jury's conclusion that the defendant is guilty beyond a reasonable doubt."26o
The conviction will be reversed only if the evidence is so weak as to
compel a jury to entertain a reasonable doubt. 261 Applying this standard, the court in United States v. Del Aguila-Reyes 262 upheld the conviction of a driver of a vehicle for possession of cocaine found in a
factory built compartment under the floor of an auto which was
neither visible nor readily accessible to the driver. 263 The majority
257.
258.
259.
grounds,
260.
261.
States v.
262.
263.
716 F.2d 257 (5th Cir. Sept. 1983), cert. denied, 104 S. Ct. 1910 (1984).
727 F.2d 1373 (5th Cir. Mar. 1984).
United States v. Bell, 678 F.2d 547, 549 (5th Cir. 1982) (en bane), aff'd on other
462 U.S. 356 (1983).
United States v. Del Aguila-Reyes, 722 F.2d 155, 157 (5th Cir. Dec. 1983).
Id; United States v. Young Bros., Inc., 728 F.2d 682 (5th Cir. Mar. 1984); United
Freeze, 707 F.2d 132 (5th Cir. May 1983), cerr. denied, 105 S. Ct. 246 (1984).
722 F.2d 155 (5th Cir. Dec. 1983).
Id. at 157.
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TEXAS TECH LAW REVIEW
[Vol. 16:269
relied on the large amount of cocaine (approximately 30 pounds with
a wholesale value of about five million dollars) as supporting an inference that the driver was more than a mere casual employee simply
driving from Guatemala to Miami to bring back Toyota pickups. The
jury also could infer that the defendant should have known the trip
was probably for an illegal reason because he had made the trip of
1,500 miles from the Texas border to Miami three times before and
"surely he knew Toyotas could be purchased much nearer to Guatemala than Miami, with considerably less effort and lower transportation costs. "264 Also significant was the defendant's lack of concern
and surprise on learning the cocaine had been found in the vehicle
and his false statement that this was the first trip his brother had
made with him (supporting an inference he was attempting to protect
his brother in a known illegal enterprise). 265
Judge Rubin, dissenting, quarreled with the inferences drawn by
the majority.266 He finds it inconsistent to conclude that the absence
of nervousness is evidence of guilt when the existence of nervousness
is frequently used to indicate guilt. He also found it equally tenable
(although he does "not know how the minds of narcotics dealers
work") that a drug dealer would think an unwitting dupe would less
likely steal the cargo than a willing accomplice. 267 The fact that
Toyotas could be purchased elsewhere than Miami is insignificant
when it was reasonable to conclude that the less than $200 per automobile cost of travel was justified by the price charged by the Miami
dealer. The defendant's misstatement of his brother's activities after
the cocaine was found was seen as just as likely to shield the brother
from whatever accusation would be made rather than an attempt to
exonerate from actual conviction. 268 The position the majority appears to take is -that when it is reasonable to draw more than one
inference from a certain fact or facts the government is to be given the
benefit of the inference more favorable to its case. The dissenting
judge, on the other hand believes that only the "more reasonable"
inference should be drawn. The majority probably is right on principle but inference-drawing at the appellate level is a speculative
business. 269
264.
265.
266.
267.
268.
269.
[d.
[d. at 158.
[d. at 158-59 (Rubin, J., dissenting).
[d. at 158.
[d.
See, e.g., Turner v. McKaskle, 721 F.2d 999, 1004 (5th Cir. Dec. 1983) (dissenting
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1985]
CRIMINAL LAW AND PROCEDURE
305
Despite its recent rejection by the Ninth Circuit,270 the concurrent sentence doctrine continues to be routinely applied in the Fifth
Circuit. The concurrent sentence doctrine avoids "unnecessary review" of a conviction on one count which has a sentence running concurrently with the sentence from the conviction on another count that
is affirmed on appeal. 271 To ensure against adverse consequences to
the defendant from the unreviewed conviction, the court will vacate
the unreviewed conviction and suspend imposition of the sentence. 272
If the government later decides that changed circumstances make
reimposition of the sentence in the public interest, it may interpose its
objection and subject the conviction to appellate review. 273 The procedure has been characterized by the Ninth Circuit as "unwieldly"
and "fraught with the potential for delay and the wasting of judicial
resources," creating the possibility of fragmented appeals and a burden on the prosecution to monitor ongoing circumstances. 274 Moreover, it arguably constitutes an impermissible judicial infringement on
the prosecutorial function of the executive branch and a waste of
prosecution resources contrary to the public interest.275 The Fifth
Circuit position, however, is premised on the view that, on balance,
the interests of judicial economy and convenience furthered by the
concurrent sentence doctrine outweigh any benefits to be derived from
reviewing each conviction on the merits.
judge characterizes inferences of majority as speculative and "far-fetched" in reversing murder
conviction).
270. See United States v. DeBright, 730 F.2d 1255 (9th Cir. 1984).
271. See. e.g., United States v. Diaz, 733 F.2d 371 (5th Cir. June 1984); United States v.
Nelson, 733 F.2d 364 (5th Cir. May 1984); United States v. Harris, 727 F.2d 401 (5th Cir.
Mar. 1984); Williams v. Maggio, 714 F.2d 554 (5th Cir. Sept. 1983).
272. United States v. Diaz, 733 F.2d 371 (5th Cir. June 1984) (referring to United States v.
Montemayor, 703 F.2d 109, 116 (5th Cir.), cerr. denied, 104 S. Ct. 89 (1983».
273. 733 F.2d 371. The Fifth Circuit thus avoids the problem of deciding whether adverse
consequences will in fact result from the conviction, a necessary determination under the
Ninth Circuit's version of the concurrent sentence doctrine which was used to affirm the unre·
viewed conviction. That approach involved the court in the uncertain and time-consuming
prophecy of adverse collateral legal consequences. In addition, it effectively denied the right of
appeal on the unreviewed count. See United States v. De Bright, 730 F.ld 1255, 1258-59 (9th
Cir. 1984).
274. United States v. DeBright, 730 F.2d at 1257 (9th Cir. 1984).
275. [d. Acknowledging that dismissal on appeal of one or more counts may be appropriate in a given case, the court concludes that Department of Justice policy, not the ad hoc
judgment of an appellate court, should determine whether charges are dismissed.
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