United States v. Michael Harley , 366 F. App'x 145 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 18, 2010
No. 09-14059 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-60059-CR-JIC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HARLEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 18, 2010)
Before DUBINA, Chief Judge, TJOFLAT and WILSON, Circuit Judges.
PER CURIAM:
Appellant Michael Harley appeals his sentences after his convictions for
selling and conspiring to sell United States Treasury checks, in violation of 18
U.S.C. §§ 371 and 510(b). Harley contends that, at his sentencing hearing, the
district court improperly permitted Michael Gabriel, his co-defendant who had
already pleaded guilty, to exercise his Fifth Amendment privilege. Harley asserts
that Gabriel’s testimony would have exonerated him.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Khanani, 502 F.3d 1281, 1292 (11th Cir. 2007). Even if an
evidentiary ruling is erroneous, it will warrant reversal “only if the error was not
harmless.” Id. (internal quotation marks omitted). An error is harmless unless
there is a reasonable likelihood that it affected the defendant’s substantial rights.
Id. (internal quotation marks omitted).
The Fifth Amendment provides, in relevant part: “No person shall be . . .
compelled in any criminal case to be a witness against himself.” U.S. Const.
Amend. V, cl. 2. “[A] witness’s answers are not compelled within the meaning of
the Fifth Amendment unless the witness is required to answer over his valid claim
of privilege.” United States v. Vangates, 287 F.3d 1315, 1320 (11th Cir. 2002)
(internal quotation marks omitted). “[T]he Fifth Amendment permits a witness to
refuse to answer any question put to him unless and until he is protected at least
against the use of his compelled answers and evidence derived therefrom in any
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subsequent criminal case in which he is a defendant.” Id. (internal quotation marks
omitted). That protection extends to any “proceeding, civil or criminal, formal or
informal, where the answers might incriminate him in future criminal
proceedings.” Minnesota v. Murphy, 465 U.S. 420, 426 104 S. Ct. 1136, 1141
(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 94 S. Ct. 316, 322 (1973)).
To assert the privilege against self-incrimination, the threat of a future
prosecution and possible conviction must be “reasonable, real, and appreciable.”
United States v. Gecas, 120 F.3d 1419, 1424 (11th Cir. 1997) (en banc). As a
general rule, where there can be no further incrimination, there is no basis for
asserting the privilege. Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct.
1307, 1314, (1999). A witness may not invoke the Fifth Amendment concerning a
charge to which he has already pleaded guilty and “in which the sentence has been
fixed and the judgment has become final . . . . If no adverse consequences can be
visited upon the convicted person by reason of further testimony, then there is no
further incrimination to be feared.” Id.We conclude from the record that the district court did not abuse its
discretion by declining to compel Gabriel’s testimony over his invocation of his
Fifth Amendment privilege. It was not unreasonable to conclude that, by testifying
in Harley’s favor, Gabriel possibly would be contradicting his earlier statements
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made as part of a guilty plea, exposing himself to a potential charge of perjury.
Moreover, we conclude that Harley has failed to demonstrate that any
alleged error caused him prejudice. Harley has offered no reason for the
introduction of Gabriel’s testimony, other than a blanket assertion that Gabriel’s
testimony would have exonerated him. This is inappropriate at a sentencing
hearing, as Harley’s guilt had already been determined by a jury beyond a
reasonable doubt. Additionally, as Gabriel’s counsel made clear in his response to
Harley’s request that Gabriel testify, Gabriel would not provide any testimony that
was favorable to Harley, even if compelled. In sum, Harley has not identified how
his substantial rights were affected by the district court’s decision to permit Gabriel
to invoke the Fifth Amendment.
Accordingly, the district court’s ruling was not an abuse of its discretion,
and we affirm Harley’s sentences.
AFFIRMED.
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