474 F.

2d 582

UNITED STATES of America, Plaintiff-Appellee,

v.
Carl SKOLEK, Defendant-Appellant.
No. 72-1534.

United States Court of Appeals,

Tenth Circuit.
Submitted Jan. 24, 1973.
Decided Feb. 1, 1973.
Rehearing Denied Feb. 28, 1973.

James L. Treece, U. S. Atty., and Paul D. Cooper, Asst. U. S. Atty., for

plaintiff-appellee.
Jerrold M. Ladar, San Francisco, Cal., and Marvin S. Cahn, Berkeley,
Cal., for defendant-appellant.
Before HILL, BARRETT and DOYLE, Circuit Judges.
PER CURIAM.

Carl Skolek, charged with violating 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C.
Sec. 2, was convicted by a jury and appeals.

A review of the trial transcript discloses that Special Agent David Hanks of the
Bureau of Narcotics and Dangerous Drugs, together with a partner, Passick, and
pursuant to a pre-determined arrangement, proceeded to a room at the Ramada
Inn in Denver, Colorado, on February 2, 1972, at approximately 7:00 p. m. to
meet one Randall Caldwell. Caldwell appeared stating that he had recently
arrived from California with his "connection" who was then en route to
Caldwell's residence on Chase Street in Denver. Caldwell handed Hanks eight
ounces of a substance containing cocaine which was represented to be similar in
quality to prior sales between the parties. Shortly thereafter another accomplice,
Patrick Egan, arrived and was also asked about the quality of the cocaine which
he also stated was the same as prior transactions. Caldwell and Egan were
promptly placed under arrest.

Agent Hanks then took the cocaine to his office and proceeded with another
agent, Castille, to the Chase Street residence to talk with the "connection". They
were met at the residence by a boarder, Robert Montoya, known through prior
dealings, and informed him that they needed to talk with "Carl J. Stone" as to an
alleged discrepancy in the amount of cocaine involved in the earlier transaction.
Stone was an alias that the appellant, Skolek, had been using at that time,
according to Hanks.

Montoya introduced the agents to Skolek who was asked whether he had sent
Caldwell and Egan to the Ramada Inn with eight ounces of cocaine. Skolek
responded that he had. When told that Caldwell and Egan had wanted to sell
them six rather than eight ounces, Skolek replied: "Let me figure that out." He
then sat at a table with paper and pencil and began to write. Skolek then
apparently suspected the circumstances for he abruptly stated, in effect, that he
didn't know anything and wasn't going to say anything else. Skolek was also
promptly taken into custody.

At trial, Egan, who had the same day entered a plea of guilty to one of the
counts charged in the indictment, was called as a Government witness. A
discussion followed with Egan's attorney concerning Egan's Fifth Amendment
privilege against self-incrimination. The court denied Egan's claim of privilege
and he testified. The testimony showed that Skolek, a friend of Egan's had been
contacted by telephone and agreed to bring the cocaine to Denver where he
planned to vacation, in return for $300. Egan and Caldwell met Skolek at the
Denver airport and proceeded to the Chase Street residence. Egan stepped out
of the house momentarily and when he returned, the cocaine that he had
discussed with Skolek had appeared on the table, at the same time Skolek
appeared. Caldwell picked up the four ounces of cocaine to which Egan
subsequently added four ounces of baking powder. Skolek had been informed
that the cocaine he was to carry was intended for sale.

Three of the issues in this appeal are directed to the testimony of a witness,
Patrick Egan, and Egan's Fifth Amendment claim of privilege against selfincrimination. Basically, the argument is that Egan was compelled to testify
without a grant of immunity and without a waiver of his privilege, an alleged
denial of due process, and that Skolek was denied effective assistance of
counsel and right to cross-examination by Egan's "arrangement" to testify.

There is no constitutional right not to be incriminated by the testimony of

another. Some constitutional rights may not be vicariously asserted. See
Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
The privilege against self-incrimination is solely for the benefit of the witness

and is purely a personal privilege of the witness, not for the protection of other
parties. Rogers v. United States, 340 U.S. 367, 71 S.Ct. 438, 95 L.Ed. 344
(1951).
8

We have held that the protection against self-incrimination, a shield of silence,

is a personal privilege for the sole benefit of the witness. Edwards v. United
States, 131 F.2d 198 (10th Cir. 1942), cert. denied, 317 U.S. 689, 63 S.Ct. 262,
87 L.Ed. 552. This principle is well settled. Gollaher v. United States, 419 F.2d
520 (9th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 434, 24 L.Ed.2d 424;
United States v. Elliott, 418 F.2d 219 (9th Cir. 1969); United States v. Bruton,
416 F.2d 310 (8th Cir. 1969), cert. denied, 397 U.S. 1014, 90 S.Ct. 1248, 25
L.Ed.2d 428; Quintero v. United States, 409 F.2d 839 (9th Cir. 1969); Bowman
v. United States, 350 F.2d 913 (9th Cir. 1965), cert. denied, 383 U.S. 950, 86
S.Ct. 1209, 16 L.Ed.2d 212; Poole v. United States, 329 F.2d 720 (9th Cir.
1964); United States v. Goldfarb, 328 F.2d 280 (6th Cir. 1964), cert. denied,
377 U.S. 976, 84 S.Ct. 1883, 12 L.Ed.2d 746.

Where the witness is not the party, the party may not claim the privilege nor
take advantage of an error of the court in overruling it. Bowman v. United
States, supra. Accord, Long v. United States, 124 U.S.App.D.C. 14, 360 F.2d
829 (1966), authored by Judge, now Chief Justice, Burger. The party, as
contrasted to the witness, simply lacks standing. United States v. Ceniceros,
427 F.2d 685 (9th Cir. 1970); United States v. Elliott, supra; United States v.
Bruton, supra; Lopez v. Burke, 413 F.2d 992 (7th Cir. 1969). See also
Alderman v. United States, supra, and United States v. Galvez, 465 F.2d 681
(10th Cir. 1972).

10

The self-incrimination provision of the Fifth Amendment is to "be accorded

liberal construction in favor of the right it was intended to secure". Hoffman v.
United States, 341 U.S. 479 at 486, 71 S.Ct. 814, at 818, 95 L.Ed. 1118 (1951).
A defendant has a vested interest only in his own Fifth Amendment rights.
Poole v. United States, supra. There is no violation of the privilege when the
information elicited is used not against the witness but against another. Lopez
v. Burke, supra. The privilege belonged to Egan, not to Skolek.

11

Egan did not undertake to test the validity of the court's rulings by standing
upon his claim of privilege and refusing to answer. It is for the trial court to say
whether his silence is justified. Hoffman v. United States, supra. Nor are we
convinced that the court ruling was anything but correct. Egan had earlier
pleaded guilty to this same count in exchange for the dismissal of others.
Having pleaded guilty, he could be compelled to testify. United States v.
Hoffman, 385 F.2d 501 (7th Cir. 1967); United States v. Gernie, 252 F.2d 664

(2nd Cir. 1958), cert. denied, 356 U.S. 968, 78 S.Ct. 1006, 2 L.Ed.2d 1073;
United States v. Romero, 249 F.2d 371 (2nd Cir. 1957); United States v. Cioffi,
242 F.2d 473 (2nd Cir. 1957), cert. denied, 353 U.S. 975, 77 S.Ct. 1060, 1
L.Ed.2d 1137. And having given the testimony under compulsion, Egan may
well be protected against its use in other proceedings. Bowman v. United
States, supra. See also C.R.S. Sec. 48-5-21 (1963), which protects the
substantial rights of Egan now that he has pleaded guilty to the federal charge.
12

The attorneys representing Skolek in this appeal succeeded the trial attorneys.
They now contend that Egan and the prosecution made an "arrangement" for
his testimony and that this should be the subject of meaningful crossexamination, an opportunity, they imply, not afforded Skolek at trial. While
Egan's credibility as a witness may have been an important issue in the case,
together with any evidence of an agreement, see Giglio v. United States, 405
U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Skolek had ample opportunity
to cross-examine in all respects, an opportunity never limited by the trial court.
Failure to take advantage of that opportunity cannot seriously be urged as a
ground for reversal. It may very well have been a part of their trial strategy
since the testimony of Egan was not the only testimony linking Skolek with the
crime. Furthermore, the trial court instructed the jury with regard to assessing
the testimony of witnesses generally, and of accomplices specifically. See
United States v. Plemons, 455 F.2d 243 (10th Cir. 1972); United States v.
Holmes, 453 F.2d 950 (10th Cir. 1972), cert. denied, 406 U.S. 908, 92 S.Ct.
1618, 31 L.Ed.2d 819; United States v. Birmingham, 447 F.2d 1313 (10th Cir.
1971).

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13
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14
15

The Government rested its case at approximately 11:45 a. m. and a discussion

immediately followed at the bench, out of the presence of the jury and off the
record. The jury was then excused for lunch and a discussion concerning the
admissibility of the cocaine exhibit followed. The concern was with the
exhibit's chain of custody, followed by motions to suppress the cocaine and for
judgment of acquittal. The court determined that the chain of custody had been
satisfactorily established and denied the motion to suppress, admitting the
exhibit, and the motion for acquittal.

16

The appellant now contends that the exhibit, the contraband, was erroneously
admitted after the close of the evidence. If we understand the argument, the
evidence should not have been admitted after the Government rested. We have

repeatedly held otherwise. United States v. Moehring, 446 F.2d 516 (10th Cir.
1971); United States v. Keine, 424 F.2d 39 (10th Cir. 1970), cert. denied, 400
U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75; Massey v. United States, 358 F.2d 782
(10th Cir. 1966), cert. denied, 385 U.S. 878, 87 S.Ct. 159, 17 L.Ed.2d 105.
Furthermore, the matter of the exhibit and admissibility had been discussed
earlier in the trial and the parties agreed to delve into the matter during the
recess, to conserve time.1 If the argument on this issue is directed to the chain
of custody, we agree with the trial court that the chain was satisfactorily
established.
***
17
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18
19

Other issues are raised. First the appellant complains that it is error for the
court to permit the indictment to be taken into the jury room, without
cautionary instructions and where an alias was used. Whether the indictment
may be taken to the jury room is within the sound discretion of the trial court.
Wall v. United States, 384 F.2d 758 (10th Cir. 1967); Little v. United States, 73
F.2d 861 (10th Cir. 1934); United States v. Davis, 437 F.2d 928 (7th Cir.
1971); United States v. Green, 433 F.2d 946 (5th Cir. 1970); United States v.
Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194,
27 L.Ed.2d 191; Dallago v. United States, 138 U.S.App.D.C. 276, 427 F.2d 546
(1969); United States v. Marquez, 424 F.2d 236 (2nd Cir. 1970), cert. denied,
400 U.S. 828, 91 S.Ct. 56, 27 L.Ed.2d 58; American Bar Association Minimum
Standards for Criminal Justice Relating to Trial by Jury, Section 5.1 (materials
to jury room). In Little v. United States, supra, we held that if the indictment
goes, the jury should be charged, upon request, that the indictment is not
evidence of the facts charged therein. Such an instruction was given here.

20

The jury requested the indictment after they commenced deliberation. A copy
of the indictment was prepared after shielding the other counts and the names
of other defendants. The copy, thus shielded, reflected only the name of Skolek,
with the alias Carl Stone, and the fourth count (but not designated as a fourth
count). The use of the alias was permissible where there was testimony that
Skolek had used such a name. Agent Hanks, when visiting the Chase Street
residence after the sale, had informed the boarder, Montoya, that he needed to
speak to Stone resulting in Hanks' confrontation with Skolek. See United States
v. Wilkerson, 456 F.2d 57 (6th Cir. 1972), cert. denied, 408 U.S. 926, 92 S.Ct.
2507, 33 L.Ed.2d 337. The proof thus conformed to the allegations in the
indictment. See United States v. Lynn, 461 F.2d 759 (10th Cir. 1972). The trial
court's discretion in permitting the indictment to be taken into the jury room

was properly exercised.

21

Finally, the failure to record the grand jury testimony is challenged. There is no
requirement that the proceedings of a grand jury be recorded. United States v.
Cooper, 464 F.2d 648 (10th Cir. 1972). cert. denied, 409 U.S. 1107, 93 S.Ct.
902, 34 L.Ed.2d 688; United States v. Hedges, 458 F.2d 188 (10th Cir. 1972);
United States v. Quintana, 457 F.2d 874 (10th Cir. 1972); Nipp v. United
States, 422 F.2d 509 (10th Cir. 1970), cert. denied, 397 U.S. 1008, 90 S.Ct.
1235, 25 L.Ed.2d 420. We find no merit to the claim that the appellant's right to
confront and cross-examine is violated when no record of a witnesses' prior
testimony before the grand jury is available. See United States v. Cooper,
supra. The appellant also argues that the indictment was based on hearsay
evidence before the grand jury. This claim is equally without merit. Costello v.
United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

22

Affirmed.

"MR. WEED: Your Honor, may I respectfully request the Court's permission to
look at the exhibits that have been referred to as 7(A), 7(B), and 7(C), the
envelopes?
"THE COURT: Please.
"MR. WEED: Could I take them over to the table?
"THE COURT: Please. Let's proceed in this fashion, if we may. Mr. Cooper,
who is your next witness, please?
"MR. COOPER: Agent Hanks, Your Honor.
"THE COURT: What the Court would suggest is to go into Agent Hanks'
testimony, then at recess, you can go into these exhibits.
"MR. WEED: There will be legal-what I am concerned about, when he intends
to offer it as evidence. If it is not going to be at this time, I don't think it can be-I
can"THE COURT: To what witness do you intend to introduce these exhibits,
please?
"MR. COOPER: Agent Hanks, and then Mr. Egan and Caldwell.

"THE COURT: The Court will reserve ruling on any admissibility then at this
time, counsel.
"MR. WEED: And any other legal agents such as chain of custody.
"THE COURT: That's right.
"MR. WEED: We will have more opportunity not to waste the Court's time.
"THE COURT: Mr. Ruybal, the Court will direct that Mr. Ruybal remain here,
and then you may cross-examine.
"The court reserves ruling on 7(A), (B), and (C). The Court will reserve ruling
on these exhibits."