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02/14/86 United States of America v. Bernard Foster

February 14, 1986

UNITED STATES OF AMERICA

v.

BERNARD FOSTER, APPELLANT APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CRIMINAL NO. 83-77-1).

(1) SHOULD THIS CIRCUIT ABANDON THE SO-CALLED "NON-WAIVER" RULE ANNOUNCED IN CEPHUS

v.

UNITED STATES,. . . ?



Before ROBINSON, Chief Judge, and WRIGHT, WALD, MIKVA, EDWARDS, GINSBURG, BORK, SCALIA, STARR and SILBERMAN, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1986.CDC.37

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCALIA

Opinion for the Court by SCALIA, Circuit Judge.

This is an appeal from conviction, after jury trial, on charges of possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d) (1982), and possessing a firearm not identified by serial number in violation of 26 U.S.C. §§ 5842, 5861(i). The firearm in question was a short-barreled shotgun found by the Metropolitan Police Department at the Argyle Variety Store in Northwest Washington, on a shelf beneath the counter at which the defendant was working. The principal basis of appeal is that there was inadequate evidence to establish the "knowing dominion and control," United States v. Whitfield, 203 U.S. App. D.C. 102, 629 F.2d 136, 143 (D.C. Cir. 1980), cert. denied, 449 U.S. 1086, 66 L. Ed. 2d 812, 101 S. Ct. 875 (1981), necessary for constructive possession of an illegal firearm, see United States v. Lewis, 226 U.S. App. D.C. 236, 701 F.2d 972, 973 (D.C. Cir. 1983). Highly relevant to this point is evidence introduced by the defendant, after the District Court's denial for his motion for acquittal at the conclusion of the government's case, that the defendant was not merely an occasional worker behind the counter, but was the manager of the store.

It has been the law of this circuit, first announced by dictum in Cephus v. United States, 117 U.S. App. D.C. 15, 324 F.2d 893, 895-97 (D.C. Cir. 1963), that objection to denial of a motion for judgment of acquittal made at the close of the government's case-in-chief is not waived by the defendant's proceeding with the presentation of his evidence, so that the validity of an ensuing conviction must be judged on the basis of the government's initial evidence alone. See, e.g., United States v. Lewis, 701 F.2d at 973. Because this circuit is apparently the only federal jurisdiction to hold that view, and because in the present case the subsequently introduced evidence was of potentially determinative importance, on the motion of the panel hearing the case the court agreed to decide en banc the following issues:

(2) If so, should such change be effected prospectively?

The full court has had the benefit of briefing and oral argument by the parties, and of briefing by the District of Columbia Public Defender Service as an invited amicus. I

Although the non-waiver rule was first applied as a holding by this court in Austin v. United States, 127 U.S. App. D.C. 180, 382 F.2d 129, 138 & n.20 (D.C. Cir. 1967), the opinion in that case relied upon Cephus, which remains the only reasoned justification for the rule contained in our opinions. Cephus frankly acknowledged that the rule was contrary to federal authority:

ost jurisdictions, including Federal circuits, have consistently followed the waiver rule; and the Supreme Court, in a case from the Ninth Circuit, has provided at least a dictum supporting it.

324 F.2d at 896 (footnotes omitted). The Supreme Court case alluded to was United States v. Calderon, 348 U.S. 160, 164 & n.1, 99 L. Ed. 202, 75 S. Ct. 186 (1954) -- and though it was assuredly "at least a dictum" it was more likely a holding. Not only did the Court describe the waiver rule as law, but it specifically relied on the defendant's testimony, offered after his motion to acquit was denied, in finding sufficient evidence of the crime of income tax evasion. Id. at 167.

The Cephus court felt, however, that the waiver rule had been "imported from civil into criminal trials without considering the demands of our accusatorial system of criminal justice." 324 F.2d at 896-97 (footnote omitted). Although quoting from a New Jersey case to the effect that the waiver rule "'comes perilously near compelling the accused to convict himself,'" id. at 896 (quoting State v. Bacheller, 89 N.J.L. 433, 436, 98 A. 829, 830 (N.J. 1916), Cephus's analysis did not rest upon any constitutional imperative. Rather, at the heart of its reasoning was the notion that requiring the defendant to forgo presentation of his case if he wishes to preserve his objection to denial of his motion to acquit is requiring him to "gamble on a prediction that the jury or appellate court will find [the government's] evidence insufficient," 324 F.2d at 896 -- suggesting that under such compulsion there is no genuine waiver in the sense of a known and voluntary relinquishment of rights. Moreover, the court noted that what might have been viewed as the technical justification for finding waiver (viz., that the defendant had no categorical right to a ruling upon his motion of acquittal until he had rested his case) had been eliminated by Rule 29(a) of the Federal Rules of Criminal Procedure, 324 F.2d at 896-97. To the extent that Cephus rests on this rejection of a fictional "waiver," the foundation of its reasoning has been eroded by our recent en banc decision in United States v. Byers, 239 U.S. App. D.C. 1, 740 F.2d 1104 (D.C. Cir. 1984), dealing with the similar assertion that a criminal defendant's so-called "waiver" of his fifth amendment right by introducing psychiatric testimony (making him subject to compulsory examination by a government psychiatrist) is not a "genuine" waiver:

The eminent courts that put [the "waiver" theory] forth intended [it], we think, not as [an] explanationof the genuine reason for their result, but as [a] device-- no more fictional than many others to be found -- for weaving a result demanded on policy grounds unobtrusively into the fabric of the law. . . .

hey have denied the Fifth Amendment claim primarily because of the unreasonable and debilitating effect it would have upon society's conduct of a fair inquiry into the defendant's culpability.

Id. at 1113. So also with the "waiver" here; it is a conventional fiction used to describe and produce the result that the courts will not blind themselves to incriminating evidence introduced by the defendant who chooses to respond, rather than to ...


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