United States v. Bullard

• Court: Court of Appeals for the First Circuit
• Decided: October 24, 1994
• Docket: 93-1718
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 93-1718

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  MILLER M. BULLARD,

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                           Selya and Boudin, Circuit Judges,
                                             ______________

                             and Carter,* District Judge.
                                          ______________

                                 ____________________

            Warren R. Thompson, by Appointment of the Court, for appellant.
            __________________
            Kevin J.  Cloherty, Assistant  United States  Attorney, with  whom
            __________________
        Donald K. Stern, United  States Attorney, was on brief  for the United
        _______________
        States.

____________________

                                   October 20, 1994
                                 ____________________

____________________

        *Of the District of Maine, sitting by designation.

BOUDIN, Circuit Judge.   On July 20, 1992, an  armed man
                         _____________

            held  up  the Baybank  branch  at  285  Huntington Avenue  in

            Boston,  and  escaped  with  approximately  $421.     Shortly

            thereafter,  law  enforcement   agents  arrested   defendant-

            appellant Miller  M. Bullard, who  was then charged  with one

            count  of armed  robbery  of a  federally insured  depository

            institution, 18  U.S.C.     2213(a), (d).   A jury  convicted

            Bullard on October 22, 1992.  He has appealed his conviction.

            We affirm.

                 Bullard's trial lasted three days, and for a significant

            portion of that  time, he represented himself.   The district

            court  had  originally  appointed  counsel for  him,  but  he

            objected  to  that appointment,  and  the  court granted  his

            motion  to proceed  pro se.   The  court also  appointed Owen
                                ______

            Walker  of the  federal  public defender's  office to  act as

            standby  counsel.   Walker sat  with Bullard  at  the defense

            table throughout trial.  Walker presented opening and closing

            arguments,  and  he also  cross-examined  the key  government

            witness.

                 Bullard's  central claims  of error  concern issues  not

            raised at trial.  With  one possible qualification, we review

            these claims  for plain  error, which encompasses  only those

            errors that are both "plain" and involve either a miscarriage

            of   justice  or   deviations   that  seriously   impair  the

            fundamental   fairness  and  basic  integrity  of  the  trial

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proceedings.  United States v. Olano, 113 S. Ct. 1770 (1993);
                          _____________    _____

            United  States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.
            ______________    _______                               _____

            denied, 484 U.S. 844 (1987).  
            ______

                 Bullard   first  contends   that  even  though   he  was

            representing himself, he was left out of a conference between

            counsel and the judge concerning the possible inattentiveness

            of  one   juror,  thus   violating  his   right  to  pro   se
                                                                 ________

            representation.  During the trial, the district judge noticed

            that on one day  an individual juror appeared to  be somewhat

            less attentive than  normal.  When  the jurors were  excused,

            the district judge asked  the juror in question to  remain in

            the courtroom and then questioned  the juror, in the presence

            of the prosecutor and Walker.

                 The juror  acknowledged that  the night before,  she had

            worked a  double  shift  and  was somewhat  tired,  but  also

            asserted  that she was perfectly  capable of continuing.  The

            court  then excused the  juror from the  room and effectively

            invited the  prosecutor and Walker  to object to  the juror's

            continuation  if dissatisfied  with  her  answers.    Neither

            counsel objected  to the juror's continuing.   Walker himself

            noted that the juror had seemed to be "on the ball."

                 The record  does not reveal whether Bullard  was in fact

            present during the conference,  which was conducted in court.

            Bullard now  asserts that he  was absent for  this conference

            (his brief cites only to a telephone call between Bullard and

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his appellate counsel).   It is possible that the  marshal or

            court security  officer removed Bullard before  the juror was

            questioned and also possible that some or all of the colloquy

            occurred  at  sidebar.   The  transcript is  silent  on these

            points.

                 Since the record is unclear on this factual issue, there

            certainly  is no "plain" error.   Of course,  one might argue

            that  it is  unfair  to hold  this  lack of  clarity  against

            Bullard  since  he himself  may not  have  been aware  of the

            episode  until he  reviewed  the trial  transcript after  his

            conviction.   Still, if the issue were to be properly pressed

            on appeal,  Bullard or his  appellate counsel ought  at least

            have  asked the district court to supplement the record.  See
                                                                      ___

            Fed. R.  App. P. 10(e) (allowing  supplementation of district

            court record to correct mistake or omission).

                 Out  of  an abundance  of  caution,  we have  considered

            whether Bullard  was actually prejudiced,  even assuming that

            he was absent during the episode.  Of course, a defendant  is

            normally entitled  to be  present during a  court proceeding,

            and even more so when acting pro se.  But here Bullard was at
                                         ______

            least  represented by  standby counsel  at the  proceeding in

            question.   Given that the  record does not  show Bullard was

            absent,  we  think  that it  goes  as  far  as required,  and

            arguably  beyond, to  ask  whether his  possible absence  has
                                                    ________

            created demonstrable or likely prejudice.

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Here,  we see no prejudice  at all.   A sharp-eyed trial

            judge, commendably attentive, noticed some signs that a juror

            might  not have been fully  alert.  Sua  sponte he questioned
                                                ___________

            the  juror who denied any illness, explained that she had had

            a late night, and in substance asserted her wish to continue.

            Probably,  the attention  of  an average  juror, perhaps  all

            jurors,  drifts  at some  point during  a  trial.   The trial

            judge,  who had  seen the  juror's actions,  felt no  need to

            press for or order her removal; and neither counsel asked for

            it.

                 There is nothing  to show that the juror  missed crucial

            evidence  or  exhibited  serious  or  prolonged  inattention;

            Bullard says  otherwise in his brief but  provides nothing to

            support the  assertion.  The evidence  against Bullard, which

            we need not describe in detail, was substantial;  it included

            an eye witness identification of him as the bank robber, made

            by a teller who had been standing in the teller booth next to

            the  one  robbed.   Any  notion  that  Bullard  was convicted

            because  the  juror in  question  was not  excused  is highly

            implausible.

                 Bullard's other contentions relate  to a brief encounter

            with  a police  officer before booking.   Prior  to Bullard's

            initial  booking photograph, Detective  Carroll of the Boston

            Police  Department took a picture of  him because Carroll had

            noticed at the arrest  that Bullard wore a baseball  hat with

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the brim cocked up--a style that Carroll felt was unusual and

            one  depicted in the photographs derived from the film in the

            bank  surveillance camera.  Bullard refused to put his hat on

            when Carroll asked  him to, but  then relented and  Bullard's

            photograph was taken with his hat on.

                 During  Carroll's  trial  testimony, he  mentioned  that

            Bullard  had refused  to  put his  hat  on, and  Bullard  now

            alleges that such testimony  violated his right against self-

            incrimination.   The  prosecutor also  alluded  to  Bullard's

            refusal  during her  closing argument.   In  addition, before

            trial   the  prosecutor  told  the  court  that  she  had  no

            statements  of  the  defendant  to turn  over  in  discovery;

            Bullard now alleges that this was untrue (because his refusal

            was  a statement)  and constituted  a violation  of discovery

            obligations and misconduct by the prosecutor.

                 None  of these  matters  comes anywhere  close to  plain

            error.  We start with Bullard's claim that his refusal to put

            on a hat  was a statement that the  prosecutor had to produce

            before  trial.  Bullard's refusal to put  on his hat does not

            fit under the literal language of Fed. R.  Crim. P. 16, which

            requires the government to turn  over statements only if they

            were made in the course of  interrogation.  The rule has been

            so  construed by  the courts.   See,  e.g., United  States v.
                                            ___   ____  ______________

            Reeves, 730  F.2d  1189  (8th  Cir. 1984).    Certainly,  the
            ______

            failure to disclose  in advance Carroll's testimony as to the

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refusal does not plainly violate any  cited discovery rule or
                             _______

            order.

                 Bullard  also  claims that  it  was  misconduct for  the

            prosecutor to  advise the court before trial  that "there are

            no statements of the  defendant" and then to elicit  at trial

            Bullard's refusal.   Actually, it  is not clear  that Bullard

            did express his refusal  in words, but there is  certainly no

            indication  of a conscious  deception by the  prosecutor.  If

            Bullard was  surprised by the detective's  testimony and felt

            he  had been misled, he was free  to raise the point at trial

            and ask for a brief delay or continuance.    

                 Bullard's   self-incrimination    claim   is   similarly

            unavailing.   Bullard  properly  does not  complain on  self-

            incrimination  grounds  about  the government's  use  of  the

            photograph showing him in his hat.  It is well  accepted that

            a  defendant's Fifth  Amendment right  is not  compromised by

            such physical evidence; a defendant can be  obligated to give

            blood, stand  in a  lineup, provide handwriting  examples and

            cooperate  in other  similar  fashions.   E.g., Schmerber  v.
                                                      ____  _________

            California, 384  U.S. 757 (1966); Gilbert  v. California, 388
            __________                        _______     __________

            U.S. 218 (1967).    What Bullard appears  to argue instead is

            that his initial refusal  to cooperate by putting on  his hat

            amounts  to  using  his  own words--namely,  his  refusal  to

            cooperate--against him as evidence of consciousness of guilt.

            The prosecutor did  not urge this  inference and referred  to

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the  refusal primarily  in connection  with an  argument that

            Bullard  and  the robber  wore their  hats  in the  same way.

            Still, the inference is pretty obvious.

                 In  many circumstances,  a defendant's refusal  to speak

            with the police or answer questions is not allowed to be used

            against him.  The concern is not that the silence or words of

            refusal are  themselves compelled testimony, for  the silence

            or  words of refusal are not compelled.   Rather, the fear is

            that  using the  refusal  against the  defendant would  place

            undue and inappropriate pressure upon him to surrender his or
                                    ________

            her constitutional right to remain silent.  In some cases, an

            inference from silence  could also be unfair  for a different

            reason;  the Supreme  Court has said  that a  Miranda warning
                                                          _______

            carries the implication that there is no penalty for silence,

            and  the  defendant may  reasonably  rely  on the  assurance.

            Doyle v. Ohio, 426 U.S. 610, 618 (1976).
            _____    ____

                 The present  case  is quite  different.   Bullard had  a

            Fifth Amendment right  to remain  silent but he  had no  such

            right  to refuse to don a hat,  stand in a lineup, or provide

            fingerprints.    Since he  had no  such  right, then  to draw

            inference of  guilt from his refusal  to cooperate physically

            does  not place  improper  pressure  on  him to  surrender  a

            protected right.  Nor does a Miranda warning promise or imply
                                         _______

            that a defendant can with impunity refuse to put on a hat.

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Of course, in some situations a  refusal to cooperate by

            providing  physical   evidence   may  be   defended   because

            cooperation   would  itself   reveal   the  content   of  the

            defendant's mind.   See, e.g., Fisher  v. United States,  425
                                ___  ____  ______     _____________

            U.S. 391, 410 (1976); In re Kave, 760 F.2d 343, 358 (1st Cir.
                                  __________

            1985).   But this case involves  no such danger.   As for the

            logic  of the inference, an  inference based on  a refusal to

            cooperate where cooperation itself can be compelled and would

            be  expected from an innocent person, is no different than an

            inference of guilt based on flight to avoid arrest.

                 We  do  not want  to  be  understood  as giving  blanket

            approval to  testimony of a defendant's  refusal to cooperate

            in  physical  activities.   An  inference of  guilt  might be

            irrational in some circumstances  (e.g., a defendant refusing
                                               ____

            to  submit  to  a  dangerous operation  to  recover  evidence

            against  him).   There may  be a  range of other  cases where

            testimony or comment about a defendant's refusal to cooperate

            in   physical  activities  could  be  unduly  prejudicial  or

            threaten  constitutional rights.   But  no such  situation is

            apparent here, and there is certainly no plain error.

                 Affirmed.
                 ________

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