United States v. Bullard

USCA1 Opinion












UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 93-1718

UNITED STATES OF AMERICA,

Appellee,

v.

MILLER M. BULLARD,

Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
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Warren R. Thompson, by Appointment of the Court, for appellant.
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Kevin J. Cloherty, Assistant United States Attorney, with whom
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Donald K. Stern, United States Attorney, was on brief for the United
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States.


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October 20, 1994
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*Of the District of Maine, sitting by designation.















BOUDIN, Circuit Judge. On July 20, 1992, an armed man
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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
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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);
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United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.
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denied, 484 U.S. 844 (1987).
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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
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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
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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
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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
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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
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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.
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Reeves, 730 F.2d 1189 (8th Cir. 1984). Certainly, the
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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
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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.
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California, 384 U.S. 757 (1966); Gilbert v. California, 388
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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
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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
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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).
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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
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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
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U.S. 391, 410 (1976); In re Kave, 760 F.2d 343, 358 (1st Cir.
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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
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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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