USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 93-1718
UNITED STATES OF AMERICA,
Appellee,
v.
MILLER M. BULLARD,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Selya and Boudin, Circuit Judges,
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and Carter,* District Judge.
______________
____________________

Warren R. Thompson, by Appointment of the Court, for appellant.

__________________
Kevin J. Cloherty, Assistant United States Attorney, with w
__________________
Donald K. Stern, United States Attorney, was on brief for the Uni
_______________
States.
____________________
October 20, 1994
____________________

____________________
*Of the District of Maine, sitting by designation.

BOUDIN, Circuit Judge.

_____________
held

up

Boston,

the Baybank
and

thereafter,

escaped
law

appellant Miller
count

of armed

institution, 18

branch
with

at

agents

M. Bullard, who
robbery

of a

U.S.C.

285

armed man

Huntington Avenue

approximately

enforcement

Bullard on October 22, 1992.

We affirm.

On July 20, 1992, an

$421.

arrested

was then charged

federally insured

2213(a), (d).

A jury

in

Shortly
defendantwith one
depository
convicted

He has appealed his conviction.

Bullard's trial lasted three days, and for a significant

portion of that
court

had

objected

time, he represented himself.

originally
to

that appointment,

motion

to proceed

Walker

of the

standby

pro se.
______

federal

counsel.

and

he also

counsel for
and

The

the

him,

but

court granted

court also

public defender's

Walker sat

table throughout trial.

arguments,

appointed

The district

his

appointed Owen

office to

with Bullard

he

at

act as

the defense

Walker presented opening and closing

cross-examined

the key

government

witness.
Bullard's

central claims

raised at trial.
these claims

With

for plain

of error

concern issues

not

one possible qualification, we review

error, which encompasses

only those

errors that are both "plain" and involve either a miscarriage

of

justice

fundamental

or

deviations

fairness

and

that
basic

seriously
integrity

impair
of

the

the
trial

-2-2-

proceedings.

United States v. Olano, 113 S. Ct. 1770 (1993);

_____________
_____

United States v. Griffin, 818 F.2d 97, 100 (1st Cir.), cert.
______________
_______
_____
denied, 484 U.S. 844 (1987).
______
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
________

representation.

During the trial, the district judge noticed

that on one day

an individual juror appeared to

less attentive than

normal.

the district judge asked

When

be somewhat

the jurors were

the juror in question to

the courtroom and then questioned

excused,
remain in

the juror, in the presence

of the prosecutor and Walker.

The juror

acknowledged that

worked a

double

asserted

that she was perfectly

court

shift

then excused the

invited the
continuation

and

the night before,

was somewhat

prosecutor and Walker

counsel objected

but

capable of continuing.

juror from the

if dissatisfied

tired,

she had

with

The

room and effectively

to object to
her

also

the juror's

answers.

to the juror's continuing.

Neither

Walker himself

noted that the juror had seemed to be "on the ball."

The record

does not reveal whether Bullard

present during the conference,

Bullard now

asserts that he

was in fact

which was conducted in court.

was absent for

this conference

(his brief cites only to a telephone call between Bullard and

-3-3-

his appellate counsel).

court security

It is possible that the

officer removed Bullard before

marshal or

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
that

is no "plain" error.

it is

unfair

Bullard

since

episode

until he

conviction.
on appeal,
have

to hold

he himself
reviewed

Of course,

one might argue

this

lack of

clarity

against

may not

have

been aware

of the

the trial

transcript after

Still, if the issue were to be properly pressed

Bullard or his

appellate counsel ought

at least

asked the district court to supplement the record.

Fed. R.

his

App. P. 10(e) (allowing

See
___

supplementation of district

court record to correct mistake or omission).

Out

of

an abundance

whether Bullard

of

caution,

was actually prejudiced,

he was absent during the episode.

we have

considered

even assuming that

Of course, a defendant

is

normally entitled

to be

present during a

and even more so when acting pro se.

______
least

represented by

question.
absent,

we

arguably

But here Bullard was at

standby counsel

Given that the

court proceeding,

at the

record does not

think

that it

beyond, to

ask

goes

as

far

whether his

proceeding in

show Bullard was

as required,

and

possible absence
________

has

created demonstrable or likely prejudice.

-4-4-

Here,

we see no prejudice

at all.

A sharp-eyed trial

judge, commendably attentive, noticed some signs that a juror

might
the

not have been fully

alert.

Sua sponte he questioned

___________

juror who denied any illness, explained that she had had

a late night, and in substance asserted her wish to continue.

Probably,

the attention

jurors,

drifts

at some

judge,

who had

seen the

of

an average

point during

juror, perhaps
a

juror's actions,

trial.
felt no

all

The trial
need to

press for or order her removal; and neither counsel asked for

it.
There is nothing
evidence

or

exhibited

Bullard says
support the

to show that the juror

serious

or

prolonged

otherwise in his brief but

assertion.

missed crucial

The evidence

inattention;

provides nothing to

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

because

robbed.
the

Any

juror in

notion
question

that

Bullard

was not

was convicted

excused

is highly

implausible.
Bullard's other contentions relate
with

a police

initial
Police

officer before booking.

booking photograph, Detective

Department took a picture of

noticed at the arrest

to a brief encounter
Prior

to Bullard's

Carroll of the Boston

him because Carroll had

that Bullard wore a baseball

hat with

-5-5-

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.

when Carroll asked

Bullard refused to put his hat on

him to, but

then relented and

Bullard's

photograph was taken with his hat on.

During
Bullard

Carroll's

had refused

trial
to

put his

alleges that such testimony

incrimination.
refusal
trial

The

during her
the

statements

the

hat

mentioned

on, and

that

Bullard

now

violated his right against self-

prosecutor also

alluded

closing argument.

In

prosecutor
of

testimony, he

told

the

defendant

court

to turn

to

Bullard's

addition, before
that

over

she
in

had

no

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
error.
on a hat
before

of these

matters

comes anywhere

plain

We start with Bullard's claim that his refusal to put

was a statement that the
trial.

prosecutor had to produce

Bullard's refusal to put

fit under the literal language of Fed. R.

requires the government to turn
were made in the course of
so

close to

construed by

Reeves, 730
______

failure to disclose

1189

interrogation.

(8th

Crim. P. 16, which

over statements only if they

the courts.

F.2d

on his hat does not

See,
___

The rule has been

e.g., United States v.

____ ______________

Cir. 1984).

Certainly,

the

in advance Carroll's testimony as to the

-6-6-

refusal does not plainly violate any

_______

cited discovery rule or

order.
Bullard

also

prosecutor to

claims that

Actually, it

did express his refusal

he

misconduct for

the

that "there are

defendant" and then to elicit

Bullard's refusal.

at trial

is not clear

that Bullard

in words, but there is

certainly no

of a conscious

Bullard was

was

advise the court before trial

no statements of the

indication

it

deception by the

surprised by the detective's

had been misled, he was free

prosecutor.

If

testimony and felt

to raise the point at trial

and ask for a brief delay or continuance.

Bullard's
unavailing.

self-incrimination
Bullard

incrimination

properly

grounds

about

does not

defendant's Fifth

Amendment right

cooperate

in a

in other

is not

fashions.

use

selfof

the

accepted that
compromised by

obligated to give

lineup, provide handwriting

similar

similarly

complain on

It is well

such physical evidence; a defendant can be

blood, stand

is

the government's

photograph showing him in his hat.

a

claim

examples and

E.g., Schmerber
____ _________

v.

California, 384
__________

U.S. 757 (1966); Gilbert

_______

U.S. 218 (1967).

What Bullard appears

that his initial refusal

amounts

to

using

his

v. California, 388
__________
to argue instead is

to cooperate by putting on
own words--namely,

his

his hat

refusal

to

cooperate--against him as evidence of consciousness of guilt.

The prosecutor did

not urge this

inference and referred

to

-7-7-

the

refusal primarily

Bullard

and

the robber

in connection
wore their

with an
hats

argument that

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.
refusal are
or
that

The concern is not that the silence or words of

themselves compelled testimony, for

words of refusal are not compelled.

using the

refusal

against the

the silence

Rather, the fear is

defendant would

place

undue and inappropriate pressure upon him to surrender his or

________
her constitutional right to remain silent.

In some cases, an

inference from silence

reason;

the Supreme

could also be unfair

Court has said

that a

for a different
Miranda warning
_______

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).

_____
____
The present

case

Fifth Amendment right

right

inference of

different.

to remain

to refuse to don a hat,

fingerprints.

does

is quite

Since he

silent but he

protected right.

improper

had no

such

stand in a lineup, or provide

had no

such

guilt from his refusal

not place

Bullard had

pressure

right, then

to draw

to cooperate physically
on

him to

surrender

Nor does a Miranda warning promise or imply

_______

that a defendant can with impunity refuse to put on a hat.

-8-8-

Of course, in some situations a

providing

physical

evidence

may

refusal to cooperate by
be

defended

because

cooperation

would

defendant's mind.

itself

reveal

the

See, e.g., Fisher

___ ____ ______

content

of

the

v. United States,
_____________

425

U.S. 391, 410 (1976); In re Kave, 760 F.2d 343, 358 (1st Cir.
__________
1985).
logic

But this case involves

of the inference, an

no such danger.

inference based on

As for the
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

approval to
in

to

be

understood

testimony of a defendant's

physical

activities.

An

irrational in some circumstances

to

submit

against

to

him).

be a

blanket

refusal to cooperate

inference of

guilt

might be

(e.g., a defendant refusing

____

dangerous operation
There may

as giving

to

recover

range of other

evidence

cases where

testimony or comment about a defendant's refusal to cooperate

in

physical

threaten

activities

could

constitutional rights.

be
But

unduly

prejudicial

no such

situation is

apparent here, and there is certainly no plain error.

Affirmed.
________

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or

-9-