EDDIE EDWARDS, PETITIONER V. UNITED STATES OF AMERICA No. 90-5664 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-3a) is reported at 897 F.2d 445. /1/ JURISDICTION The judgment of the court of appeals was entered on March 2, 1990. A petition for rehearing was denied on June 4, 1990. The petition for a writ of certiorari was filed on September 4, 1990 (a Tuesday following a Monday holiday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner waived his constitutional right to testify at his criminal trial by remaining silent when his counsel did not call him as a witness. STATEMENT Following a jury trial in the United States District Court for the District of Arizona, petitioner was convicted of rape, in violation of 18 U.S.C. 1153 and 2031. He was sentenced to 22 years' imprisonment. 1. Petitioner is an Apache Indian who lived on the San Carlos Indian Reservation in Arizona. On September 13, 1986, Cynthia Waterman, a 26-year-old Apache Indian who suffered from permanent neurological impairments, was raped on the reservation. Petitioner and another resident of the reservation, Harold Talkalai, were indicted for the rape. The trials of the two defendants were severed, and Talkalai was tried first. Evidence at Talkalai's trial indicated that because of his chronic alcoholism, Talkalai was impotent. In addition, Talkalai testified that he did not rape Waterman, but that petitioner had done so. 12/21/87 Tr. 18. /2/ Talkalai was acquitted. Petitioner's trial followed. Near the end of the government's case-in-chief, the prosecutor advised the district court that the government would rest the following day after the testimony of one more witness. At a bench conference, the court asked petitioner's counsel, David Gerson, whether petitioner was going to testify. Gerson responded that petitioner might not testify, but it would depend on the testimony of the other defense witnesses. The following day, Gerson called four witnesses to the stand but rested without calling petitioner to testify. The jury found petitioner guilty. Gov't C.A. Br. 6-7. 2. Before he was sentenced, petitioner sent a letter to the probation office claiming that Gerson had not adequately represented him at trial. Among other things, petitioner asserted that Gerson had "refus(ed) to allow me to testify in my own defense." /3/ After the probation officer forwarded the letter to the district court, the court appointed new counsel for petitioner. Counsel then filed a motion for a new trial. Pet. App. 2a. At an evidentiary hearing, petitioner testified that he told Gerson before the trial, "I wanted to testify so the jury will hear my testimony, and I am doing everything necessary to get at the truth." According to petitioner, Gerson said that if petitioner testified, the government might bring up his prior record. /4/ Petitioner said that he reiterated his desire to testify during trial. Petitioner stated that before closing argument he asked Gerson, "Am I going to testify?" and that Gerson said, "No." Petitioner acknowledged that he did not indicate to the judge that he wanted to testify. 12/21/87 Tr. 5-7, 12-13. Gerson testified at the hearing that he and petitioner discussed having petitioner testify on "numerous occasions." Prior to trial, Gerson explained, it was assumed that petitioner would testify: "We had a severance granted so that (petitioner) could testify; he was going to testify." 12/21/87 Tr. 16. But when Gerson heard Talkalai testify at his own trial that petitioner had committed the rape, Gerson revisited the issue. Gerson then knew that if petitioner testified, the government would call Talkalai as a rebuttal witness and Talkalai would implicate petitioner. Although Gerson had interviewed other witnesses who could contradict Talkalai, Gerson lacked confidence in the credibility of those witnesses. In order to avoid having Talkalai appear as a rebuttal witness, Gerson decided that petitioner should not testify. Id. at 17-23. /5/ The district court denied petitioner's motion. /6/ The court explained: While it is true that (petitioner) told his attorney, Mr. Gerson: "I testify", Mr. Gerson never felt that because of the failure to use any verbs, that this was a claim by (petitioner) that he wanted to testify, but merely a statement that he was willing to testify. Mr. Gerson, an experienced lawyer, handled the case well, and was fully aware that if he put (petitioner) on the stand there was a chance of two serious matters coming before the court: 1) (petitioner's) prior conviction for rape; and 2) the co-defendant (Talkalai) would testify that (petitioner) did the raping. Order at 1. The court concluded that "(i)n light of all the testimony at the co-defendant's trial, at which Mr. Gerson sat through, concerning the impotency of Mr. Talkalai based on his excessive and chronic alcoholism, the decision of Mr. Gerson not to call (petitioner) was the only reasonable decision of a competent lawyer under the circumstances." Id. at 2. The court added that "(t)he evidence was massive against (petitioner), and his testifying cannot be found by standard of proof to have afforded any basis for a different result." Ibid. 3. The court of appeals affirmed. Pet. App. 1a-3a. Relying on its prior decision in United States v. Martinez, 883 F.2d 750 (1989), petition for cert. pending, No. 89-7539, the court rejected petitioner's contention that he had been deprived of his constitutional right to testify in his own behalf. In Martinez, the court had ruled that a defendant's silence in the face of his attorney's decision not to call him as a witness constitutes a waiver of his right to testify. Id. at 760. Here, the court noted, Martinez was not "entirely controll(ing)" because "in Martinez the defendant 'knew he had a right to be heard if he chose' * * * while in the present case (petitioner) contends that he was unaware of this right." Pet. App. 2a. Although the court found "some suggestion in Martinez that this distinction is significant," the court concluded that "the broader reasoning of Martinez applies equally in this case." The court explained that "Martinez'(s) broad rule that the (district) court has no duty sua sponte to advise a defendant of his right to testify would be meaningless if it were possible for defendants to obtain new trials simply by claiming ignorance of the right." The court therefore held that "(petitioner's) silence at trial effectively waived his right to testify on his own behalf." Id. at 3a. ARGUMENT 1. Petitioner renews his contention that he was deprived of his constitutional right to testify in his defense. Pet. 8-11. The court of appeals correctly rejected that claim. It is well settled that a criminal defendant has a constitutional right to testify in his own defense at trial. See Rock v. Arkansas, 483 U.S. 44, 49-53 (1987); Faretta v. California, 422 U.S. 806, 819 n.15 (1975); Brooks v. Tennessee, 406 U.S. 605, 612 (1972). A district court, however, has no obligation to advise a defendant who is represented by counsel that he has a right to testify, and no duty to question whether the defendant's waiver of his right to testify is a knowing or voluntary one. United States v. Martinez, 883 F.2d at 760 (a trial judge has "no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred"); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.) ("(C)ourts have no affirmative duty to determine whether a defendant's silence is the result of a knowing and voluntary decision not to testify(.)"), cert. denied, 488 U.S. 841 (1988); Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir. 1987); United States v. Bernloehr, 833 F.2d 749, 751-752 (8th Cir. 1987); United States v. Janoe, 720 F.2d 1156, 1161 & n.9 (10th Cir. 1983), cert. denied, 465 U.S. 1036 (1984). Rather, it is "(t)he accused (who) must act affirmatively" to express his desire to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847 (1985); Bernloehr, 833 F.2d at 752. As the court of appeals concluded in Martinez, it follows from those principles that a defendant waives his right to testify if he fails to assert it at trial. 883 F.2d at 760. The decision whether to testify is, in large part, a matter of trial strategy. /7/ It is a subject traditionally discussed by counsel and his client without intervention from the court. For that reason, it is the responsibility of defense counsel -- and not the trial judge -- to advise the defendant whether to testify. See United States v. Systems Architects, Inc., 757 F.2d at 375. The right to testify is therefore analogous to the right of self-representation or the right to remain silent at trial, rights that a defendant may forgo simply by declining to invoke them at trial. See Martinez, 883 F.2d at 756-759 (collecting cases). As the court of appeals explained, if a non-testifying defendant could assert his right to testify on post-trial motion, even though remaining silent when his attorney rests the defense case, the principle "that the court has no duty sua sponte to advise a defendant of his right to testify would be meaningless(.)" Pet. App. 3a. "As a practical matter, courts would be forced to inform defendants of the right so as to avoid a post-hoc invalidation of the entire trial." Ibid. Such intervention by the trial judge has been consistently rejected by the courts of appeals because it "could inappropriately influence the defendant to waive his constitutional right not to testify, thus threatening the exercise of this other, converse, constitutionally explicit, and more fragile right." Siciliano v. Vose, 834 F.2d at 31. Moreover, "a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment." United States v. Martinez, 883 F.2d at 760. Petitioner contends that an exception to this rule should apply when a defendant makes a post-trial claim that he was unaware that he had a right to testify. Pet. 11. That suggestion is unsound and unworkable. If such claims were permitted, a trial court would have to conduct a post-trial inquiry into whether the defendant was subjectively aware of his right to testify before acquiescing in his counsel's action in not calling him as a witness. Such an inquiry would necessarily depend primarily, if not exclusively, on the hindsight recollections of the defendant and his lawyer regarding their private colloquies. Neither the court nor the government would have any effective way in many cases to probe the reliability of testimony about those inherently private discussions. /8/ This case illustrates those problems. Petitioner's claim that he was denied his right to testify depended entirely on the testimony of petitioner and his former counsel, offered in a post-trial hearing. The record, fairly read, suggests that petitioner was aware of his right to testify, that he relied on his counsel's strategic judgment in not testifying, and that he was in no sense denied a constitutional right. But the record also illuminates the potential for mischief in such post-trial testimony and the imponderables in determining what was in petitioner's mind during the trial -- practical obstacles that justify the court of appeals' procedural rule. The proper analysis of petitioner's claim, as the court below held, is that petitioner's silence in the face of his lawyer's failure to call him as a witness constituted a waiver of his right to testify. /9/ 2. Although the majority of the courts of appeals that have addressed the issue have reached results consistent with the decision in this case, the recent decision of the Eleventh Circuit in United States v. Teague, 908 F.2d 752 (1990), petition for rehearing pending (filed Sept. 27, 1990), has taken a different approach. In Teague, the defendant expressed his desire to testify to his counsel, but for tactical reasons counsel rested the defense case without calling the defendant as a witness. The defendant did not raise an objection to the court prior to submission of the case to the jury; only after the verdict did the defendant, through counsel, bring to the court's attention his belief that he had been denied his right to testify. 908 F.2d at 753-755. After an evidentiary hearing, the district court denied the defendant's motion for a new trial. The court of appeals reversed, holding that the defendant had been denied his right to testify. Id. at 761. The court of appeals in Teague noted that "(t)he district court, citing the absence of any objection made by Teague on the record at trial, held that Teague had failed to prove that he had not acquiesced in the decision to rest the defense without his testimony." 908 F.2d at 759. The court added that "(t)his reasoning was recently adopted by the Ninth Circuit in United States v. Martinez * * * ((h)olding that defendant's silence at trial may establish waiver of right to testify.)." Id. at 759 n.5. The Eleventh Circuit rejected that approach. Id. at 759. Instead, the court conducted an inquiry into whether the post-trial hearing record established that the defendant had personally consented to his counsel's actions in failing to call him as a witness. Id. at 759-760. Based on that analysis, the court concluded that although the defendant had not objected at trial, his right to testify was violated because "despite his continued indications to (his counsel) during the trial that he wanted to testify, (counsel) rested his case without consulting him." Id. at 760. Judge Roney dissented in Teague. He argued that the decision whether the defendant should take the stand should be allocated to counsel as a matter of trial tactics and strategy. 908 F.2d at 761-763. Although the division between the Eleventh Circuit and the other courts of appeals may warrant this Court's attention in an appropriate case, we do not believe that the Court's intervention is warranted at present. We have filed a petition for rehearing with a suggestion for rehearing en banc in Teague; our submission asks the Eleventh Circuit to adopt the rule, which prevails in all the other circuits that have addressed the issue, that a defendant waives his right to testify if he fails to object at trial. The Eleventh Circuit has not yet acted on our petition. If the court grants the petition and ultimately affirms the judgment of the district court, the conflict among the circuits will have been resolved without the need for action by this Court. In light of the dissent by Judge Roney, the alignment of circuits against the panel position, and the conflicting opinions issued on the same issue by the former Fifth Circuit in Wright v. Estelle, 572 F.2d 1071, 1072-1074 (5th Cir.) (en banc), we believe it would be useful to allow the Eleventh Circuit the opportunity to consider our petition in Teague before this Court addresses the issue. Review is not warranted here for another reason: petitioner does not stand to benefit from the legal rule he advocates. First, the record does not establish that petitioner's counsel declined to call petitioner despite petitioner's expressed desire to testify. Rather, the district court, following an evidentiary hearing, concluded that petitioner had merely told his counsel that he was willing to testify, not that he wanted to do so. Order, at 2. "The defendant may not * * * indicate at trial his apparent acquiescence in his counsel's advice that he not testify, and then later claim that his will to testify was 'overcome.'" Bernloehr, 833 F.2d at 752. Second, the district court found in this case that "(t)he evidence was massive against (petitioner), and his testifying cannot be found by standard of proof to have afforded any basis for a different result." Order, at 2. Moreover, if petitioner had testified, the government would very likely have called Talkalai as a rebuttal witness to implicate him in the rape. Through impeachment of petitioner on cross-examination, the jury also would have learned that petitioner had previously been convicted of rape. In view of those circumstances, the district court was correct that any error relating to the denial of petitioner's right to testify was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18 (1967). /10/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General JOSEPH C. WYDERKO Attorney NOVEMBER 1990 /1/ The three-page opinion of the court of appeals is contained in petitioner's appendix I. We have numbered the pages 1a-3a. /2/ The reference is to the transcript of a hearing on petitioner's motion for a new trial pursuant to 28 U.S.C. 2241, 2255. The transcript is attached to the petition as Appendix III. /3/ See Gov't C.A. Br. App. 2 (reproducing a copy of petitioner's letter). The letter stated "I consistently told my attorney that I wished to testify in my own behalf, even after he had explained to me that my past record would be brought out, but I felt that it was extremely important for the jury to hear my testimony and only then make up their minds as to who is being truthful and what the true story surrounding this crime is. I repeated this request a number of times at trial, and my attorney refused to listen to me." /4/ Petitioner had previously been convicted of rape. See Gov't C.A. Br. App 1, at p. 1. /5/ In further explanation of his actions, Gerson said that although petitioner had no difficulty communicating in English and did not require an interpreter at trial, there were "a lot of times he doesn't use verbs such as in 'I'll testify," or "I testify(.)'" Because of petitioner's manner of expressing himself, Gerson stated that he had not formed the impression that petitioner was insisting that he testify at his trial. Id. at 24-25. /6/ The district court's order denying the motion is attached as Appendix 1 to the government's brief in the court of appeals. /7/ Although the decision whether to take the stand has been viewed as one for the defendant to make personally after receiving the advice of counsel, see Jones v. Barnes, 463 U.S. 745, 751 (1983); Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, 488 U.S. 841 (1988); Martinez, 833 F.2d at 754-755; United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987), the tactical component of that decision is well recognized. Cf. Wright v. Estelle, 572 F.2d 1071, 1072-1074 (5th Cir.) (en banc) (opinion of Thornberry, Clark, Roney, Gee, & Hill, J.J., concurring) (decision is a tactical one for counsel to make), cert. denied, 439 U.S. 1004 (1978); United States v. Poe, 352 F.2d 639, 641 (D.C. Cir. 1965) ("(C)ounsel * * * (is) "free to keep defendants from testifying whenever counsel sees fit. Any suggestion to the contrary is chimerical."). /8/ In addition, a trial court might have to consider whether a defendant was aware of his right to testify from other experiences, such as the defendant's prior contact with the criminal justice system or his familiarity with television portrayals of criminal trials. See Martinez, 883 F.2d at 761. There is good reason to doubt the correctness of any rule of law that would require a judicial determination regarding such speculative matters. /9/ Petitioner has not raised a claim that he was denied effective assistance of counsel with respect to his counsel's action in not calling him to testify, nor has he ever suggested that his failure to testify resulted in prejudice to him. See Strickland v. Washington, 466 U.S. 668, 687-688 (1975). Indeed, given petitioner's prior rape conviction, which could have been used to impeach him, and the risk that the government would call Talkalai as a rebuttal witness to implicate petitioner in the rape, counsel's decision to keep him off the stand was professionally sound. Cf. Burger v. Kemp, 483 U.S. 776, 792 (1987) (holding that a lawyer's decision not to have his client testify in a capital sentencing proceeding was professionally competent, such that there was no denial of the right to effective assistance of counsel). /10/ Because the Ninth Circuit found no constitutional violation in this case, it did not reach the harmless error point. Although petitioner argued that Chapman analysis was not appropriate for a denial of the right to testify, Pet. C.A. Br. 19-21, the courts of appeals have uniformly applied harmless error standards to such claims. See, e.g., Teague, 908 F.2d at 760-761; Wright v. Estelle, 572 F.2d at 1071.