                                 No. 95-3380


United States of America,   *
                                      *
                    Appellee,         *
                                      *   Appeal from the United States
          v.                          *   District Court for the
                                      *   Western District of Missouri.
Melvin Joe Montgomery,                *
                                      *
                   Appellant.         *



                     Submitted:     September 13, 1996

                     Filed:     November 22, 1996


Before BEAM, HEANEY, and JOHN R. GIBSON, Circuit Judges.



HEANEY, Circuit Judge.


     Melvin Joe Montgomery appeals from his conviction for possession with
intent to distribute cocaine in violation of 21 U.S.C. § 841.    Montgomery's
primary contention on appeal is that the district court erred in failing
to require two defense witnesses who intended to assert their Fifth
Amendment privilege against self-incrimination to try on clothing that the
government alleged belonged to Montgomery.     Because we agree that the court
should have permitted the defense to have the witnesses try on the
clothing, we reverse Montgomery's conviction.1




      1
       Montgomery also argues that the district court improperly
imposed an enhancement for obstruction of justice under section
3C1.1 of the sentencing guidelines because it failed to make
specific findings as required by United States v. Dunnigan, 507
U.S. 87 (1993). Given our resolution of the Fifth Amendment issue,
we need not consider Montgomery's sentencing issue on this appeal.
                                     I.


     On October 25, 1994, Montgomery travelled by train from Los Angeles,
California to Memphis, Tennessee, via Chicago, Illinois with Sir Lancelot
Barnes, the brother of his long-time friend Johnnie Barnes.     Because the
two were travelling from a source city for cocaine on one-way tickets
purchased at the last minute through a travel agency, a detective from the
Albuquerque Police Department Drug Task Force flagged the travel as
"suspicious" and indicative of drug courier activity.         He contacted
detectives in Kansas City, Missouri, to investigate the matter.    When the
train stopped in Kansas City, the detectives boarded the train, went to
Montgomery's and Barnes's sleeper car, and announced that they were looking
for narcotics.    Montgomery and Barnes consented to the search of their
luggage.   In one of Montgomery's bags, the detectives found 996.3 grams of
cocaine, wrapped in two shirts.   They arrested both men.


     Montgomery was charged with possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841.2     His first jury trial ended in
a mistrial because the jury was unable to reach a unanimous verdict.      A
second jury convicted him of the instant offense.       His defense to the
charge at both trials was that he did not knowingly possess the cocaine.
Montgomery testified that the cocaine--and the two shirts wrapped around
it--did not belong to him and that he had never seen the bundle before the
officers pulled it out of his bag.


     At the second trial, the government had Montgomery try on both of the
shirts for the jury.   Montgomery's counsel requested that Johnnie and Sir
Lancelot Barnes try on the same two shirts.   The government argued that the
evidence was irrelevant and highly




           2
          According to the government, there was no pending
investigation or charge against Barnes stemming from this incident
as of Montgomery's trial.

                                     2
prejudicial because it was known that both men intended to plead the Fifth
Amendment.3    Montgomery responded that the government put the clothing
squarely at issue by having the defendant try on the shirts.         He further
argued:


     I would submit they do not have a right not to put the
     shirts on. The Fifth Amendment only goes to testamentary
     evidence. It does not go to physical evidence just as a
     defendant can be ordered to stand up even though he is
     not going to take the stand, he can be ordered by the
     court.


(Trial Tr. at 506-07.)     The court acknowledged "that line of authority,"
but ruled:


     [I]n this particular case as sensitive as this is here
     and the incriminatory nature of what you would be asking
     [them] to do, I am not going to force them to put on
     these clothes unless the government accedes to it.


(Trial Tr. at 507.)     Neither witness appeared in the second trial.        The
jury found Montgomery guilty of the cocaine possession and the court
sentenced him to seventy-eight months imprisonment.       This appeal follows.


                                      II.


A.   Fifth Amendment Privilege


     The     Fifth   Amendment   "protects   a   person   only   against   being
incriminated by his own compelled, testimonial communications,"




     3
      The Barnes brothers were called by the defense to testify in
the first trial, but after answering a few preliminary questions,
they both pleaded the Fifth Amendment on the advice of appointed
counsel. At the second trial, they again conferred with a public
defender, who informed the court of their intention to invoke their
privilege. Thus, the district court appropriately did not permit
Montgomery to call them as witnesses.

                                       3
Fisher v. United States, 425 U.S. 391, 409 (1976).               It does not offer
protection from the compelled production of physical evidence such as
fingerprints,     photographs,        measurements,   writing    or    speaking   for
identification,    appearing     in    court,   standing,   walking,   or   making   a
particular gesture.     Schmerber v. California, 384 U.S. 757, 764 (1966).
As the Supreme Court explained:


     The prohibition of compelling a man in a criminal court
     to be a witness against himself is a prohibition of the
     use   of physical or moral compulsion to extort
     communications from him, not an exclusion of his body as
     evidence when it may be material.


Holt v. United States, 218 U.S. 245, 252-53 (1910).             The Fifth Amendment
does not protect a person from having to try on clothing.                    See id.
(evidence that a blouse fit a prisoner admissible despite compulsion
exerted upon him to try it on); see also United States v. Bullard, 37 F.3d
765, 768-69 (1st Cir. 1994) (because there is no Fifth Amendment right to
refuse to "don a hat," it is permissible to draw inference of guilt from
refusal to cooperate), cert. denied, 115 S. Ct. 1809 (1995).


     The district court abused its discretion in failing to follow this
long line of settled authority.          The government argued that the evidence
was "highly prejudicial" and would present collateral issues that would be
"confusing and invite speculation."        (Trial Tr. at 533-34).      The fact that
having the witnesses try on the shirts might be "incriminating," as the
district court agreed, does not bring the requested evidence within the
ambit of Fifth Amendment protection.              The evidence was material and
relevant.   As part of his defense to the possession charge, Montgomery
denied ownership of the shirts and claimed that he did not know how the
cocaine ended up in his luggage.         As a plausible explanation, the defense
suggested that Sir Lancelot Barnes--the only other person known to have
access to the sleeper car--put it in Montgomery's bag.                In response to
Montgomery's defense, the government had him




                                           4
try on the shirts, implying that they were his.     To rebut this implication,
Montgomery attempted to have both Sir Lancelot Barnes and his brother
Johnnie try on the same two shirts.        The government put the ownership of
the clothing squarely at issue, and the court should have permitted
Montgomery to defend himself against the allegation of ownership.


     The government raises two additional arguments against compelling the
witnesses to try on the clothes, both of which we can reject in relatively
short order.    First, the government claims that Montgomery's true objective
was to force the witnesses to assert their Fifth Amendment privilege
against self-incrimination in front of the jury.      While it is true that a
defendant cannot call a witness to the stand simply to force invocation of
the right against self-incrimination, United States v. Doddington, 822 F.2d
818, 822 (8th Cir. 1987), Montgomery made no attempt to have the witnesses
testify.   In fact, when the district court expressed concern for how the
witnesses would be identified without their testimony, defense counsel
suggested that either Montgomery or one of the sworn officers could
identify the witnesses for the jury.   The demonstration could have occurred
without any testimony on the part of the witnesses and thus, should have
been permitted.    Second, the government contends that having the witnesses
try on the shirts would have denied them of the opportunity to cross
examine them.      This argument again fails to recognize the difference
between testimonial and physical evidence.        The government only has the
right to cross-examine witnesses on the testimony that they offer at trial.
Further, any negative inference that the jury may draw from the witnesses'
failure to testify at trial was cured by the district court's appropriate
instruction.4




      4
       The district court instructed the jury that it should not
infer anything as to either party from the fact that neither of the
two witnesses testified. (Trial Tr. at 536-37.)

                                       5
B.      Harmless Error


        The government does not raise harmless error in its appellate brief,
thus waiving the argument on appeal.        We have discretion to overlook the
waiver, however, after taking into consideration the length and complexity
of the record, the certainty of the harmlessness finding, and whether a
reversal would result in protracted, costly, and futile proceedings in
district court.    Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir.) (citing
United States v. Giovannetti, 928 F.2d 225, 226-27 (7th Cir. 1991)), cert.
denied, 506 U.S. 895 (1992).    If we elect to review the record sua sponte,
our review will err on the side of the criminal defendant. Id.


        Even overlooking the government's waiver in this case, we have
carefully reviewed the entire record and cannot say that the district
court's error was harmless.    Although the evidence that the cocaine was in
Montgomery's luggage was uncontradicted, proof of whether Montgomery knew
about the cocaine before it was seized was circumstantial and close, at
best.    The first jury was not unanimously persuaded.     The record from the
second trial indicates that the shirts did not actually fit Montgomery
well.    If the court had required the witnesses to try on the two shirts,
the jury would have been able to compare how the shirts fit each witness.
If they fit the witnesses as well or better than they fit Montgomery, the
evidence would have corroborated Montgomery's testimony that the shirts did
not belong to him or at least would have countered the government's
evidence that the shirts fit Montgomery.       Thus, we are not persuaded that
the additional evidence in Montgomery's favor would not have changed the
jury's decision.


                                     III.


        The district court should have permitted Montgomery to have the
witnesses try on the shirts.     Because we cannot say the error




                                      6
was harmless, we reverse Montgomery's conviction for cocaine possession and
remand this case to the district court for a new trial.


BEAM, Circuit Judge, dissenting.


     The court takes over the conduct of this criminal trial and permits
a validly convicted drug smuggler to walk away, untouched by the jury
verdict.   From this result, I dissent.


     The court overlooks or misconstrues important facts on its journey
toward applying immaterial legal precedent or failing to apply relevant
procedural and evidentiary rules.


     Montgomery was a California state corrections officer and a close
friend of Johnnie Barnes, a long-time acquaintance he had only recently
bailed out of jail.   Montgomery was out of money and, with two remaining
weeks of vacation time and three dollars in his pocket, he claims to have
agreed to accompany Johnnie, at Johnnie’s expense, to a Barnes family
reunion in Memphis, Tennessee.      At the last minute, and without warning
to Montgomery, Johnnie purportedly substituted his brother Sir Lancelot
Barnes as Montgomery’s traveling companion.


     The one-way travel reservations on the train were acquired in
Johnnie’s name on the date of departure and were routed from Los Angeles
through Chicago in such a way that the travelers could maintain their
sleeper car during the entire trip.       There was no specific showing by
Montgomery as to how he was to return to California from a family reunion
at which he would presumably know only one person--Sir Lancelot Barnes--
although he testified that he thought someone in the Barnes family would
probably buy him an airline ticket.




                                      7
        The court’s opinion otherwise adequately outlines the events leading
up to the police contact in Kansas City.         As noted by the court, Montgomery
and Sir Lancelot consented to the search that occurred.                 Ownership of the
bag containing the 996.3 grams of cocaine was admitted by Montgomery.
Prior to the search, he volunteered that the bag contained only stereo
equipment.    Instead, it contained personal toiletries, paycheck stubs with
Montgomery’s name and, of course, the cocaine wrapped inside of two shirts.
While testifying at trial, Montgomery not only claimed that he didn’t know
about the cocaine but he also denied that the drugs found in his luggage
were ever in his luggage.


        Curiously,    the   court    contends   that    “[t]he    government    put   the
ownership of the clothing [shirts] squarely at issue,” supra at 5,
presumably by requiring Montgomery to try on the shirts in the presence of
the jury.      This is clearly incorrect.              Montgomery placed the shirt
ownership in issue when he earlier testified               that he did not own the
shirts and that he did not know how they ended up in his luggage.                  Thus,
the Montgomery shirt episode was in direct response to Montgomery’s under-
oath testimony, after he had affirmatively waived his Fifth Amendment
rights.


        The court cites four Fifth Amendment cases for the proposition that
“physical    evidence”      may     be   compelled   in   spite    of    constitutional
prohibitions.        In a proper case, this is beyond dispute but it is
irrelevant to the issues presented in this appeal.               None of the cases are
factually apposite.      There is no third-party compulsion involved in any of
them.     Each case deals with the Fifth Amendment rights of a criminal
defendant on trial or the target of a specific criminal investigation.
Also, whether or not the Barnes brothers could have been compelled to put
on the shirts without violation of their Fifth Amendment rights does not
reach the question of the fairness of that happening in the presence of the
jury during this trial.       Thus, the issue here is not the Fifth Amendment
at all.    The issue concerns Federal Rules




                                            8
of Evidence 401, 402 and 403 and the discretionary power of the trial judge
to control the admissibility of evidence at trial.


     Montgomery clearly wanted to present the Barnes brothers to the jury
and have them assert Fifth Amendment objections.               This was an impermissible
maneuver.    United States v. Doddington, 822 F.2d 818, 822 (8th Cir. 1987).
To parade them before the jury as living, but not speaking exhibits,
identified foundationally by Montgomery as suggested by the court, would
barely attenuate the impermissible Fifth Amendment message.                     Further, the
proffer     did   not   involve    “physical       evidence     such    as    fingerprints,
photographs, measurements, writing or speaking for identification,” supra
at 4 (emphasis added), it required physical acts of trying on clothing to
imply ownership of two shirts by Sir Lancelot or Johnnie Barnes which shirt
ownership would, in turn, purportedly be an inference of ownership of the
cocaine found wrapped in the shirts in Montgomery’s bag which cocaine
ownership would, in turn, prove that Montgomery did not possess the drugs
found in his luggage.       This four-tiered approach was required, according
to the court, to offset the government’s straight forward use of the shirts
in direct rebuttal of Montgomery’s testimonial claim that he did not own
the garments that were found in a bag he claimed to own.                         At best for
Montgomery, these leaping inferences and implications were barely relevant.


     The     Supreme    Court    has   said   time      and   again    that    there   is   no
constitutional entitlement to present all relevant facts.                     Just last term
the Court reiterated that “the proposition that the Due Process Clause
guarantees    the   right   to    introduce       all   relevant      evidence    is   simply
indefensible.”      Montana v. Egelhoff, 116 S. Ct. 2013, 2017 (1996).                      So,
even if forcing the Barneses to try on the shirts is not precluded by the
Fifth Amendment, and the evidence is deemed to be at least marginally
relevant, the trial court’s decision to exclude evidence under Federal Rule
of Evidence 403 must be evaluated under the very deferential abuse of
discretion




                                              9
standard.     United States v. Williams, 95 F.3d 723, 729 (8th Cir. 1996).


     The government correctly argued at trial that this evidence is a
classic example of information prohibited by Rule 403.           The marginal
relevance of the proffered evidence was clearly outweighed by the prejudice
and potential prejudice to the government.     First, as earlier indicated,
this would have been a thinly veiled dramatization of the Fifth Amendment
stance of the Barneses.     Second, since testimonial evidence from either
witness was precluded by their invocation of the Fifth Amendment, there was
no way to examine the accuracy of the implications advanced by the
proffered acts.    For instance, Montgomery was arrested on October 27, 1994,
and the proffer was made early June of 1995.    Thus, whether either Johnnie
or Sir Lancelot had undergone weight loss or weight gain or could otherwise
shed light on the ownership of the shirts was beyond inquiry by the
government.    On the other hand, Montgomery was free to take the stand and
discuss any matters concerning his fit of the shirts that he felt might be
helpful to him.


     At issue was not a question of blood type, fingerprints, voice,
height, stride or similar characteristics that were reasonably immutable
and would run to identification.    Montgomery was not limited in his quest
to disclaim ownership by Fifth Amendment protections he had already waived.
In essence, the court now allows him to use Fifth Amendment jurisprudence
as both a sword through an inference of ownership by the Barneses and a
shield to escape testimonial rebuttal from the Barnes brothers.     In short,
the trial court was correct in its evidentiary ruling and this court is
wrong to find otherwise.     There was no abuse of discretion.


     Finally, under the facts adduced in support of Montgomery’s guilt,
evidentiary error, if any, was clearly harmless beyond a




                                      10
reasonable doubt.   Even if Johnnie or Sir Lancelot owned the shirts, such
fact should not allow Montgomery to escape the consequences of having 996.3
grams of cocaine in his possession in his toiletries bag, whomever may have
actually owned the cocaine.   Accordingly, I would affirm.


     A true copy.


         Attest:


              CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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