US v. Havens case brief

1. US v. Havens (US 1980)
1. two lawyers from Indiana have a side business of importing cocaine; were successful on two occasions, by cutting holes in t-shirts and sewing cocaine into the shirts; McLeroth, wearing the shirt, is searched and picked up; Havens has already made it past customs; McLeroth rats on Havens, who is apprehended; his luggage is searched, and there are t-shirts with holes in them, which match the pockets sewn onto McLeroth’s shirt.
1. t-shirts are suppressed as evidence – and H’s lawyer sculpts testimony so as to not give prosecutor a lead into contradicting testimony by introducing suppressed t-shirts
• testimony on direct – “I had nothing to do with any wrapping or bandages or anything else with McLeroth, in connection with this cocaine matter”
• on cross – “You had nothing to do w/ sewing of the pockets?”  answer: “No”
• govt then wants to bring suppressed evidence of what was in Δ’s luggage
2. such a fine line to have to draw… could credit Havens’ lawyer for believing that this testimony was on the Agnello side of the line.
• but the line moves when the law changes – and the law changed at least somewhat in this case.
2. here, ct says the cross was “plainly within the scope of the defendant’s direct examination”
1. holding that this was cross-examination “growing out of the direct”
3. ct doesn’t expressly overrule Agnello, but SG doesn’t think much of Agnello really remains
1. SG: “within the scope,” “growing out of” could easily encompass the cross at question in Agnello
2. ct in Havens distinguishes Agnello, saying that the cross there had “too tenuous a connection” to the direct – but SG still disagrees
4. Brennan: this rule redefines the constitutional limitation so it offers no protection if the question is within the evidentiary limits on the “scope of cross”
1. Brennan objects that opening up the std to be as broad as the question (“is it within the scope of the direct”), given the flexibility/elasticity of that std – there’s almost no limit on what the govt can do – only real option for the accused who wants to avoid having this suppressed evidence heard by jury is to refrain from testifying at all.