IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51241
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARY M GREEN,
also known as Gary Macklyn Green,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
November 9, 2001
Before REAVLEY, HIGGINBOTHAM, and PARKER, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Gary M. Green appeals his conviction following a jury trial on
a charge of felon in possession of firearms in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). While in custody, Green
responded to Miranda warnings with unambiguous requests for his
lawyer. Investigators nonetheless then asked Green to open the
combination lock of a gun safe and locate other stored guns in his
home. We find that Green's compliance was testimonial evidence
obtained in violation of Green's Fifth Amendment right to counsel
and its admission at trial requires that we reverse his conviction
and remand for a new trial.
I.
Gary M. Green was convicted in the Western District of Texas
in 1988 of conspiracy to possess multiple unregistered machine guns
in violation of 26 U.S.C. § 5861(d) and 18 U.S.C. § 371. On
February 25, 2000, based on a tip from a first-time confidential
informant and follow-up investigation and surveillance, Agent Jim
Brigance of the Bureau of Alcohol, Tobacco, and Firearms obtained
a search warrant authorizing a search of Green's person, his
residence at 117 Royal Oaks Street, Kerrville, Texas, and his green
1999 Ford F-250 pick-up truck for evidence of Green's possession of
firearms in violation of 18 U.S.C. § 922(g)(1).
Agent Brigance oversaw the execution of the search warrant on
February 29, 2000. He was assisted by six ATF agents and several
officers from the Texas Attorney General’s Office and the Kerr
County Sheriff’s Office. The agents detained Green at the
Kerrville Post Office. Responding to a Miranda warning, Green
asked to contact his lawyer. The agents did not allow Green to
call his lawyer at that time, but searched Green and his truck.
The agents then placed him in a patrol car and transported him to
his residence.
Agent Brigance waited at Green’s residence for Green and the
agents. Upon arriving, Agent Larry Swisher told Brigance that
2
Green had been advised of his Miranda rights and that he asked to
speak to a lawyer. Agent Brigance then identified himself to Green
and told him about the search warrant. Green was given another
Miranda warning and again responded that he wanted to call his
lawyer. Agent Brigance told Green that he could do that later.
Agent Brigance testified at the suppression hearing that Green was
not free to leave at any point after he was approached at the post
office.
As the search of the residence began, Green told Agent
Brigance that no one else was home. Agent Brigance asked Green
whether there were any weapons in the house or any public safety
hazards that could harm anyone, and Green replied that there were
several firearms. Following a security sweep of the residence,
Agent Brigance asked Green to point out the firearms. Green took
Agent Brigance to a bedroom closet which contained a locked metal
briefcase. At Agent Brigance's request, Green unlocked the
combination lock on the briefcase. Three firearms were recovered
from the briefcase: a Taurus nine-millimeter handgun, a Fabrica
Militar de Armas Portatiles nine-millimeter handgun, and a Sig
Sauer .45-caliber handgun, all later charged in Green's indictment.
Green then told Agent Brigance that there was a shotgun in a gun
safe in another room. Green and Agent Brigance entered that room,
where Green opened the combination lock on the safe. The safe
contained a Winchester twelve-gauge shotgun, also charged in
3
Green's indictment. At the suppression hearing, Agent Brigance
admitted that Green was not free to leave at this point but
maintained that Green had not yet been "arrested."
On April 5, 2000, Green was indicted on a charge of felon in
possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Green filed a pretrial motion seeking an order
suppressing the evidence obtained during the execution of the
search warrant and the statements and testimonial acts elicited
from him during the search in violation of his Fifth Amendment
right to counsel. Following a pretrial suppression hearing, the
district court granted the motion to suppress any oral statements
made by Green during the execution of the search warrant. The
court found that Green had clearly asked for a lawyer and that he
was not free to leave. The court also stated, “This does not apply
to the guns or the narcotics found by search warrant, that’s
something else.” The court therefore did not suppress the physical
evidence obtained during the execution of the search warrant.
Defense counsel filed an in limine motion seeking an order
excluding the admission of evidence regarding Green’s opening the
locked briefcase and safe and disclosing their locations. The
district court reserved ruling on the motion and asked counsel to
approach the bench before any inquiry about those events at trial.
Before Agent Brigance took the stand in the government's case-
in-chief, defense counsel reurged his objection to the admission of
4
evidence of Green’s conduct in unlocking the briefcase and safe.
The government argued that defense counsel had left a false
impression with the jury by asserting during his opening statement
that there was no evidence that Green had entered the closet where
the firearms were found, when Green had the combination to the
briefcase in the closet. The district court overruled defense
counsel's objection and allowed the government to introduce the
evidence.
Agent Brigance then testified that, during the search of
Green’s residence, a Winchester shotgun was found in a gun safe in
the corner of one room, that Green knew the combination to the safe
by memory, and that Green opened the safe’s combination lock.
Agent Brigance also testified that several firearms were found in
a metal briefcase, that the briefcase was locked with a dial
combination lock, and that Green opened the lock for him.
The government made substantial use of this evidence. During
the government's closing, Assistant United States Attorney Joey
Contreras argued:
And what else did you hear? Well, there was a safe
there, a gun safe. Entry couldn't be made into that
safe, but for one person who knew the combination to that
safe. Who was that person? The defendant, the convicted
felon, Gary Green.
It doesn't stop there. We have three other
firearms. Where are they? They are in a locked
briefcase. How are they able to get into that briefcase?
Only one person had--opens that briefcase, has the
combination, that is the defendant, convicted felon Gary
Green.
. . . .
5
The bottom line is, those guns were in his house,
his safe, the briefcase to which he had the combination.
Assistant United States Attorney Karen Norris then argued in the
government's rebuttal argument:
And he is saying that because he wants you to think Gary
Green didn't have knowledge that the firearms were in the
house. Ladies and gentlemen, that's absurd.
There were thousands of rounds of ammunition
scattered through the house. Gary Green opened the safe,
the gun safe in the video room, where the shotgun was
located. And Gary Green opened the case in the closet of
the spare bedroom, his father's old bedroom, where the
other guns were located. It is absurd--absurd to suggest
that Gary Green didn't know there were guns in that
house.
. . . .
It is undisputed in this case, and the evidence is
clear, that this defendant had the ability to exercise
dominion over those guns. He had the combination to the
safe. The guns were in his house. Nobody ever disputed
that this was his house. He had lived in that house for
20 years, first with his father and then with a string of
other people. But it was his house. And he had that
combination. He had the power, the ability, to exercise
control over those firearms.
. . . .
Ladies and gentlemen, this is a simple case. The
ATF agents got a search warrant to look for firearms at
117 Royal Oak. And they went out there on February 29th,
and they went into the house, and they found firearms.
They found four of them; three in a locked briefcase,
which the defendant opened, one in a locked safe, which
the defendant opened.
On August 23, 2000, the jury found Green guilty. Green was
sentenced to 18 months imprisonment and three years supervised
release. Green has timely appealed his conviction.
II.
In reviewing the denial of the defendant's motion to suppress,
we review the district court's factual findings for clear error and
6
its legal conclusions de novo.1 "We view the evidence in the light
most favorable to the party that prevailed in the district court."2
When reviewing the district court's denial of the defendant's
motion to suppress, we may consider the evidence admitted at both
the suppression hearing and the trial.3
A.
Green argues that the district court erred in denying his
motion to suppress evidence of his disclosure of the location of
two locked cases containing firearms and his unlocking the
combination locks on these cases after he had been given a Miranda
warning and had repeatedly requested counsel. We agree.
"The Fifth Amendment right to counsel arises when, as here, an
individual is subject to custodial interrogation."4 The government
does not dispute that Green was in custody when he identified the
briefcase and safe and unlocked the combination locks on each,
after having been transported by ATF agents to his residence and
led around in the execution of the search warrant.5 The government
1
United States v. Jacquinot, 258 F.3d 423, 427 (5th Cir.
2001).
2
United States v. Hunt, 253 F.3d 227, 230 (5th Cir. 2001).
3
United States v. Jones, 239 F.3d 716, 718 (5th Cir.), cert.
denied, 122 S. Ct. 142 (2001)
4
United States v. Cruz, 22 F.3d 96, 98 n.7 (5th Cir. 1994).
5
See United States v. Gonzales, 121 F.3d 928, 939 n.6 (5th
Cir. 1997) (discussing the "custodial" requirement).
7
also does not dispute, although it does not explicitly concede the
point, that the ATF agents' actions in taking Green to his
residence and telling him to assist the agents in executing the
search warrant and show them any firearms in the residence was
interrogation likely to elicit an incriminating response.6 Green's
actions in disclosing that there were firearms in the residence,
showing the agents where the firearms were located, and opening the
briefcase and safe were all made in response to queries from ATF
agents after he had invoked his right to counsel. This was
custodial interrogation.
Once a suspect who is in custody has been informed of his
right to counsel through a Miranda warning and has requested
counsel, law enforcement officers may not further question the
suspect, and, absent his knowing and voluntary waiver of his right
to counsel, any statements or testimonial acts elicited by law
enforcement officers are inadmissible.7 The government makes no
argument that Green did not clearly and unambiguously invoke his
right to counsel, because he did, or that he waived his right to
6
See United States v. Daughenbaugh, 49 F.3d 171, 174 (5th
Cir. 1995) (discussing the "interrogation" requirement); United
States v. Dougall, 919 F.2d 932, 935 (5th Cir. 1990) (same).
7
See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981); Muniz
v. Johnson, 132 F.3d 214, 218 (5th Cir. 1998); United States v.
Broussard, 80 F.3d 1025, 1035 (5th Cir. 1996); Bradford v. Whitley,
953 F.2d 1008, 1010 (5th Cir. 1992).
8
counsel or voluntarily initiated communication with the ATF agents,
because he did not.8
On appeal, the government mentions its argument made before
the district court that, although Green's oral statements may have
been elicited during custodial interrogation in violation of his
Fifth Amendment right to counsel, Green's acts of opening the
combination locks were non-testimonial. This argument is without
merit. Supreme Court precedent forecloses any argument that
Green's directing the agents to the two cases containing firearms
and opening the combination locks were not testimonial acts.
In Doe v. United States,9 the majority implicitly held that
this precise behavior was testimonial communication so expressing
8
See United States v. Posada-Rios, 158 F.3d 832, 867 (5th
Cir. 1998) (holding that the right to counsel must be unambiguously
invoked by a suspect); Muniz, 132 F.3d at 218 (holding that a
suspect is not subject to further interrogation by law enforcement
officers until counsel has been made available to him unless the
suspect himself initiates further communication, exchanges, or
conversations with the officers); Bradford, 953 F.2d at 1010
(holding that a valid waiver of the Fifth Amendment right to
counsel cannot be established by showing only that the suspect
responded to further law-enforcement-initiated interrogation even
if he had been advised of his rights); Davis v. Puckett, 857 F.2d
1035, 1037 (5th Cir. 1988) (holding that, after a suspect invoked
his right to counsel, subsequent statements are admissible only if
the suspect initiated further discussion with the police and
knowingly and intelligently waived the right he had invoked).
9
487 U.S. 201 (1988).
9
the defendant's mind as to constitute compelled self-incriminatory
statements.10 There is no serious question but that Green's actions
in disclosing the locations and opening the combination locks of
the cases containing firearms were testimonial and communicative in
nature.11 These compelled acts disclosed Green's knowledge of the
presence of firearms in these cases and of the means of opening
these cases.12 The ATF agents elicited these testimonial acts in
violation of Green's Fifth Amendment right to counsel, and their
admission at trial was reversible error.
B.
The government argues that any violation of Green's rights
under the rule established in Edwards v. Arizona13 was either
invited error or harmless constitutional error. The doctrine of
10
Id. at 210 n.9 (making a comparison between being compelled
to surrender a key to a strongbox containing incriminating
documents, which would not be a testimonial act, and being
compelled to reveal the combination to a wall safe, which would be
a testimonial act).
11
See Penn. v. Muniz, 496 U.S. 582, 594-95 (1990); see also
Schmerber v. Cal., 384 U.S. 757, 761-65 (1966) (discussing the
meaning of "testimonial" and "communicative" for purposes of Fifth
Amendment protections); United States v. Brown, 920 F.2d 1212, 1215
(5th Cir. 1991) (listing applications of the rule that the Fifth
Amendment applies only to evidence that is testimonial and
communicative in nature, and not to evidence that is demonstrative,
physical, or real).
12
See Muniz, 496 U.S. at 595 n.9 (noting that "nonverbal
conduct contains a testimonial component whenever the conduct
reflects the actor's communication of his thoughts to another").
13
451 U.S. 477 (1981).
10
invited error provides that "when injection of inadmissible
evidence is attributable to the actions of the defense, the defense
cannot later object to such 'invited error.'"14 Under this
doctrine, a defendant cannot complain on appeal of alleged errors
which he invited or induced, especially where the defendant may not
have been prejudiced by the error.15 We "will not reverse on the
basis of invited error, absent manifest injustice."16
The government argues that Green opened the door to admission
of the evidence of his disclosing the location of the firearms and
opening the combination locks on the cases containing the firearms
when, during his opening statement, defense counsel argued that the
government had no evidence that Green "ever entered the closet
where the guns were found" or "did anything, other than live in
that house." The government contends that, if Green knew the
combination to the briefcase, which was found in the closet, it is
reasonable to infer that Green had been in the closet, had opened
the briefcase, and knew about the firearms. The government also
argues that the assertion in defense counsel's opening statement
that the government had no evidence that Green did anything other
14
United States v. Raymer, 876 F.2d 383, 388 (5th Cir. 1989).
15
Id.
16
United States v. Pankhurst, 118 F.3d 345, 359 (5th Cir.
1997); see also United States v. Lemaire, 712 F.2d 944, 949 (5th
Cir. 1983) ("[Invited error] would remove the matter from being
error requiring reversal, unless the error was so patent as to have
seriously jeopardized the rights of the appellant.").
11
than live in the residence was countered by the reasonable
inferences that, because Green knew of the combinations to the
locks on the briefcase and safe, he knew of the firearms.
This argument would have no purchase if defense counsel had
explicitly used the word "admissible" in stating that the
government had no evidence, an argument that no competent counsel
would make. Such a statement aside, the contention is that,
because defense counsel challenged whether the government had any
evidence, the door was opened to evidence obtained in violation of
Green's Fifth Amendment right to counsel. This argument lacks
record support, and we reject it.
It is the admission of improper evidence, not just arguments,
of which Green complains,17 and here the evidence was not admitted
for impeachment purposes only, but rather as evidence of Green's
guilt in the government's case-in-chief.18 Moreover, this is not
a case where defense counsel opened the door by questioning the
defendant on a subject relating to inadmissible evidence.19
17
Compare United States v. Rodrigo, 934 F.2d 595, 597-98 (5th
Cir. 1991).
18
Compare United States v. Grubbs, 776 F.2d 1281, 1286-87
(5th Cir. 1985).
19
See Raymer, 876 F.2d at 388 (finding invited error where
defense counsel first inquired on direct examination about
statements made by the defendant to his psychologist, after which
the prosecutor asked two questions on the subject which went
largely unanswered and the prosecutor did not touch on the subject
again); United States v. Meneses-Davila, 580 F.2d 888, 895 & n.14
(5th Cir. 1978) (finding invited error where defense counsel first
12
The government's reliance on United States v. Casto20 is
misplaced. In Casto, defense counsel suggested in his opening
statement that he might attack the credibility of a government
witness if she were put on the stand.21 We held that it was
permissible for the government to anticipate the cross-examination,
noting that the witness's guilty plea did not implicate the
defendant or confirm or deny his guilt.22 Here, Green's testimonial
conduct implicated his guilt, as evidenced by the government's use
of the evidence.
We find more help in our decision in United States v. Acosta.23
In Acosta, defense counsel announced in his defense opening
statement that he would put the defendant on the stand and that "'I
want to give the U.S. Attorney an opportunity to delve into his
background and to present to you anything that they may like to
present to you that would reflect adversely upon him.'"24 The
district court allowed the prosecutor to admit a remote prior
elicited evidence regarding otherwise inadmissible post-arrest
silence); United States v. Doran, 564 F.2d 1176, 1177 (5th Cir.
1977) (finding invited error where defense counsel first elicited
evidence regarding otherwise inadmissible plea negotiations).
20
889 F.2d 562 (5th Cir. 1989).
21
Id. at 567.
22
Id. at 567-68.
23
763 F.2d 671 (5th Cir. 1985).
24
Id. at 694 n.28.
13
conviction over defense counsel's objection under Federal Rule of
Evidence 609(b) because the district court held that the word
"anything" in the defense opening statement constituted "a waiver
of [the defendant's] right to object to potentially inadmissible
evidence or otherwise suspended the operation of the rules of
evidence."25 The trial court explained, using reasoning very
similar to that underpinning the government's argument here:
"Because I think when counsel invites the Government to
bring up anything, uses the word anything, I think they
have the right to do it. I think you are not being fair
with the jury when you tell them that you are going to
let the Government go into anything and that you are
really not, counsel. If you had qualified it, said
anything that the law will allow him to do. But there is
no qualification, they just think Mr. Arney had been
teaching Sunday School all his life, and that is not
quite correct."26
We rejected this reasoning, noting that "the use of the word
'anything' by counsel during opening argument did not bar [the
defendant] from objecting to the admission of his remote conviction
and [the defendant] did effectively object when the government
notified the court that it would seek to elicit this evidence on
cross-examination."27
Similarly, Green did not open the door to the admission of
inadmissible evidence against him and did not create a false
impression by challenging whether the government had any evidence
25
Id. at 694.
26
Id.
27
Id. (footnote omitted).
14
to satisfy the knowing possession element of the section 922(g)(1)
charge against him. Although the government points to defense
counsel's statements in his opening regarding whether the
government had "any evidence," these statements must be read within
the context of the entire opening. Defense counsel prefaced his
statements no less than ten times by the usual qualifying language
of opening statements that he believed or suspected "the evidence
is going to show," or that he thought "there's going to be
evidence" of, various facts. He also concluded his opening
statement by saying that "[t]hat's the case that I think the
government is going to bring to you." And the government made no
complaint at the time about the argument. It remained silent until
later in the trial when it decided it wanted to elicit the disputed
evidence.
In the context of defense counsel's opening statement, fairly
read, "any evidence" means "any admissible evidence." At the time
of the opening statement, the district court had suppressed Green's
oral statements elicited after his rejected request for counsel and
reserved ruling on the requested exclusion of Green's testimonial
acts in disclosing the location of the firearms in the locked cases
and opening the locks on those cases. Although the district court
therefore had not yet ruled whether the testimonial conduct was
admissible, defense counsel's statement that the government did not
have any evidence showing knowing possession did not, by itself,
15
render incompetent evidence admissible. The inescapable fact is
that the government would not have had this evidence had the in
limine objection been properly sustained at trial. The argument in
the defense closing would then have been that "the government has
brought you no evidence that . . ." or "there was no evidence in
the record . . ." or "the government has no evidence that . . .."
By challenging whether the government had any admissible
evidence of his guilty knowledge Green did not automatically make
admissible any facts, conduct, or statements that the district
court had not yet explicitly ruled inadmissible. To hold otherwise
would stretch the doctrine of invited error too far.
C.
The government argues that, if the error was not invited, the
error was nevertheless harmless because the evidence of Green's
guilt was overwhelming even without the questioned evidence of
Green's disclosing the location of, and opening the combination
locks on, the briefcase and safe containing the firearms. The
erroneous admission of evidence of testimonial acts elicited in
violation of a suspect's Fifth Amendment right to counsel is
subject to the doctrine of harmless constitutional error.28
Under a harmless constitutional error analysis, we must review
the record to determine whether the error was harmless beyond a
28
Goodwin v. Johnson, 132 F.3d 162, 181 (5th Cir. 1997).
16
reasonable doubt.29 "An error is harmless only if we can determine
beyond a reasonable doubt that the improper testimony did not
contribute to the jury's verdict."30 We must consider what effect
the error had upon the guilty verdict in the instant case, not the
effect the constitutional error might generally be expected to have
upon a hypothetical reasonable jury.31 The question is whether the
evidence prejudicially contributed to the conviction,32 i.e.,
whether, looking to the basis on which this jury rested its
verdict, the verdict rendered was surely unattributable to the
constitutional error.33
We have noted that a consideration relevant to whether a
guilty verdict was "surely unattributable" to the constitutional
error is the degree of importance placed on the erroneously
admitted evidence by the prosecution in presenting and arguing its
case to the jury, such that "[t]he emphasis, or lack thereof,
placed on the [evidence] by the prosecution can affect the
perception of that [evidence] by the jurors."34 As Green
29
See United States v. Moreno, 185 F.3d 465, 472 (5th Cir.
1999).
30
Id. at 475.
31
United States v. Lage, 183 F.3d 374, 388 (5th Cir. 1999).
32
United States v. Nutall, 180 F.3d 182, 188 (5th Cir. 1999).
33
United States v. Walker, 148 F.3d 518, 526 (5th Cir. 1998).
34
Id. at 527.
17
persuasively argues, the erroneously admitted evidence was
important in the government's proof of Green's knowing possession
of the firearms, an element of its case. Green's knowledge of the
location of the firearms and the combinations to the locks on the
briefcase and safe was emphasized repeatedly in the government's
closing arguments and in the questioning of the ATF agent from whom
it was elicited.
We find that the evidence of ammunition scattered throughout
the residence and the evidence that Green may have entered the
rooms in which the firearms were located does not establish that
the constitutional error in this case was harmless beyond a
reasonable doubt. Green’s knowledge of the location of the
firearms in the locked cases and of the combination of the locks on
those cases was the only direct evidence of his knowledge of and
access to the firearms charged in the indictment.35 Given this
fact, coupled with the evidence at trial that other people who may
have possessed firearms had resided in Green's house, it cannot be
said that the error in this case was harmless beyond a reasonable
doubt.
III.
35
We also recognize that a shotgun barrel was recovered from
Green's truck, which could be used to replace the barrel on the
shotgun recovered from the gun safe in Green's house. This
evidence, however, also does not alter our conclusion that the
constitutional error in this case was not harmless beyond a
reasonable doubt.
18
Because we find the district court committed reversible error
in denying Green's motion to suppress his testimonial conduct, we
need not reach Green's other points of error. We REVERSE Green's
conviction and REMAND for a new trial.
19