01-2192 U.S. v. Bonner

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“Bonner’s words and conduct fell within the rule of United States v. Davenport, 929 F.2d 1169, 1174 (7th Cir. 1991), which holds that if a defendant starts down an exculpatory path by providing statements, and then clams up and refuses to expand on those statements, the latter silence may be introduced at trial. Davenport rests on two propositions. On the one hand, it would be unseemly or dishonest if a prosecutor could purport to respect the silence of an accused at one stage and then use that same silence at a later stage of the same prosecution to create an inference of guilt. Conversely, it would not serve the criminal justice system to allow defendants to use the Fifth Amendment both as a shield and as a sword, answering questions selectively and preventing the prosecution from mentioning such selectiveness at trial. See also McGahee v. Massey, 667 F.2d 1357, 1364 (11th Cir. 1982) (‘[T]he law does not provide a sword by which the defendant may selectively testify as to the merits of his prosecution, yet shield himself from comment on his failure to explain incriminating evidence properly admitted prior to his testimony.’). We have a Davenport situation here because Bonner voluntarily provided documents to Agent Penton aimed at dispelling any incriminating evidence the government had. Once he did that, the government was entitled to mention at trial that Bonner refused to talk about those same documents when he became concerned that he might incriminate himself. We acknowledge that Bonner’s case is a bit different from the Davenport pattern, insofar as Bonner merely presented his documents (without oral commentary) and then refused to answer questions. But this is a distinction without a difference. The defendant in Davenport tried to tell an exculpatory story, and when pressed for details, invoked the Fifth Amendment. Bonner’s proffer of documents beyond the scope of the subpoena was exactly the same kind of attempt to exculpate as the defendant’s initial oral statements in Davenport. Unlike the handwriting samples that Bonner was compelled under subpoena to supply (and thus which were not testimonial under Schmerber v. California, 384 U.S. 757, 765 (1966)), his offer of the power of attorney and the letter he wrote to the VA on Angelita’s behalf were not compelled. Instead, his act of producing them was designed to support his story, and that act was the equivalent of testimony. Davenport controls here, and thus Bonner’s rights were not violated when Agent Penton testified about his unwillingness to discuss those particular documents.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Wood, J.