Billy Joe Martin, Appellant, v. United States of America, Appellee, 400 F.2d 149 (9th Cir. 1968)

Billy Joe Martin, appellant herein, was convicted after a jury trial in the United States District Court for the Southern District of California for a violation of 21 U.S.C. § 174 (smuggling narcotics). He made a timely appeal to this court, which has jurisdiction under 28 U.S.C. § 1291.

Appellant was stopped by United States Customs Inspector Geiger at the San Ysidro port of entry while he was driving across the Mexican border into the United States. Geiger questioned appellant about his citizenship, the purpose of his trip, and whether or not he was bringing anything back from Mexico. Appellant appeared to be very talkative and Mr. Geiger advised him to drive into the secondary customs area, where he was asked to go into the office. Geiger then asked him to remove his coat; appellant did so and handed it to him. Geiger observed that the coat seemed to be bulky on one side and that there was a large amount of pink tissue paper in the inside pocket. As Geiger started to look inside the jacket to see what the bulky package was, appellant said, "I bet I know what that is; somebody must have put that there." The package was opened and found to contain what was later stipulated to be five packets of heroin weighing a total of 4.30 ounces. A little later a customs agent with the Bureau of Customs, Treasury Department, one Mr. Jackson, took over and advised appellant "that he did have certain constitutional rights, that he had a right to remain silent, that he didn't have to make any statements, sign any papers unless he so desired, that he was entitled to and would be provided with an attorney of his choice, and if he couldn't afford one the government would provide one at any and all times of the proceedings relative to his interrogation." He was also advised that "the statements he did make if he chose to make any could and might be used against him." He was then given a "Rights of Waiver" form which was read by the appellant and signed by him. This signed waiver is set out in the margin.¹ 

Appellant then told Jackson that he had gone from Los Angeles to Mexico on a pleasure trip; that he had visited a house of ill repute in Tijuana; that he had become intoxicated and that he had been drugged. When he was questioned at length about the heroin found in his coat, he first stated that an unidentified Mexican had given it to him and told him where to deliver it. Later he changed his story and disclaimed any knowledge concerning the heroin found in his possession and stated that he could not remember or did not know whom it belonged to.

A hearing was held before the district judge in the absence of the jury to determine whether the warning given to appellant either orally or in writing was sufficient under Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694. The district judge held that the warning was not sufficient under Miranda and that nothing concerning the procuring of the heroin should be admitted into evidence.² 

In the prosecution's case no attempt was made to introduce into evidence any part of appellant's story to the customs agents of his trip to Tijuana. However, when appellant himself testified he gave a rather bizarre and unusual story of having gone to Tijuana with a man known to him only as Jupiter, who gave him $1,000 while there. We have set out in the margin a summary of a portion of such testimony and excerpts of other testimony given by appellant.³ 

On cross-examination government counsel asked appellant and received without objection the following question and answer:

"Q. Did you tell the customs officials at the border about Mr. Jupiter?"

"A. Yes, I told them."

On rebuttal the government called Agent Jackson. He testified as follows:

"Q. Referring to the early morning hours of March 30th of this year did you have an opportunity to have a conversation with the defendant?

"A. Yes, I did.

"Q. Where did this conversation take place?

"A. At the border port of entry, San Ysidro * * *.

"Q. During the course of this conversation did the defendant ever tell you anything about a man named Jupiter?

"A. Not to my recollection."⁴ 

Appellant contends that the admission of this question and answer was error. We disagree.

The government contends that the warnings given to appellant were sufficient under the rule of Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and that the district court was in error in not permitting the government to introduce the entire statement made by appellant to the customs officials.

In support of this argument counsel for the government points out that the oral warning given to appellant together with the written warning signed by him sufficiently complied with the requirements of Miranda. This is a very close question, particularly when we compare the warning given with some of the language found in Miranda.⁵  The government's argument is persuasive. However, assuming arguendo that the warning did not sufficiently comply with Miranda, the challenged question was still proper. The opinions in Miranda occupy over a hundred pages. The Court is there mainly concerned with preventing the introduction in evidence of any incriminating statement made by a defendant where the proper warning has not been given. Nowhere is there any reference to excluding evidence that the defendant did not say something. The nearest the decision comes to this matter is found in the following statement: "The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish between degrees of incrimination. Similarly, for precisely the same reason no distinction may be drawn between inculpatory statements and statements alleged to be merely `exculpatory'."

In this case the question asked of Agent Jackson called for neither an inculpatory nor an exculpatory statement. Indeed, it did not call for evidence of any statement at all, but merely pointed out that to the witness' recollection appellant had never mentioned the name Jupiter to the customs agents. It only reflected on the credibility of appellant's earlier testimony that he had told the agents about Jupiter. The facts in this case distinguish it from those in Groshart v. United States, 392 F.2d 172, 9th Cir., March 27, 1968. In Groshart the court dealt with statements that had actually been made by the appellant and were later used to impeach him. Here, however, the questioned impeaching evidence was not an earlier statement made by appellant. We therefore hold that the trial court did not err in allowing the question to and answer of Agent Jackson to be admitted.

The only other contention made by appellant is his claim that the district judge committed reversible error in sentencing appellant more harshly because he had announced an intention to appeal. We see no merit in this contention.⁶  At the time of sentencing the record shows appellant had refused to make a statement to the probation officer, that he had a prior conviction and that he had spent a large part of his adult life in prison. Counsel for appellant stated: "Mr. Ely: Well, certainly in order to — we have already discussed whether or not an intention to appeal is to be a factor."

and the court replied:

"The Court: Oh, that's not a factor at all."

The record does not show that there was any abuse of discretion on the part of the district judge.

Judgment affirmed.