United States v. Green

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