United States v. Kawaskii Blanche ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2203
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota
Kawaskii Blanche, *
*
Appellant. *
___________
Submitted: October 22, 1997
Filed: June 23, 1998
___________
Before McMILLIAN, LOKEN and HANSEN, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Kawaskii Blanche (appellant) appeals from a final judgment entered in the
United States District Court1 for the District of Minnesota, upon a jury verdict, finding
1
The Honorable James M. Rosenbaum, United States District Judge for the
District of Minnesota.
him guilty of being a felon2 in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1).3 The district court sentenced appellant under the federal sentencing
guidelines to fifty-one months imprisonment, three years of supervised release, and a
special assessment of one hundred dollars. For reversal, appellant argues that the
district court erred in (1) partially denying his motion for judgment of acquittal,
(2) refusing to immunize his sister, the complaining witness, (3) admitting his
audiotaped telephone conversation with a Minneapolis police officer in which appellant
stated his intention to obtain more guns upon release from custody for then-pending
state law gun possession charges, (4) limiting his closing argument, and (5) excluding
his sister from the courtroom during the final minutes of trial. For the reasons discussed
below, we affirm the judgment of the district court.
Jurisdiction
Jurisdiction was proper in the district court based upon 18 U.S.C. § 3231.
Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.
Background
On June 25, 1996, at about 7:00 p.m., Minneapolis police responded to a 911
call reporting a disturbance at the home of appellant’s parents, James and Jacqueline
2
On October 2, 1995, appellant pleaded guilty in Hennepin County District
Court, Minneapolis, Minnesota, to illegal possession of a short-barreled shotgun.
Appellant was convicted on April 5, 1996 for this crime and sentenced to five years
probation.
3
Appellant was also charged with and convicted of conspiring to obtain firearms
through false statements in violation of 18 U.S.C. § 922 (a)(6). However, the district
court granted appellant’s motion for judgment of acquittal notwithstanding the verdict
on this count.
2
Blanche. The call was placed by Shawana Blanche (Shawana), appellant’s then-sixteen
year-old sister, who described an assault to her person with a handgun by appellant.
During that call, Shawana also described the handgun used in the assault and appellant’s
clothing.
Upon arriving at the Blanche family residence, Minneapolis police saw appellant
exiting the house in clothing that matched the 911 dispatcher’s description and took
appellant into custody. Appellant did not have a gun on his person. During the
execution of a search warrant at the Blanche home later that evening, the police seized
a Lorcin .380 handgun and ammunition for the gun inside a cabinet in a bedroom in the
west end of the basement. The police also seized a fully loaded, semi-automatic Ruger
.40 pistol inside a box in the ceiling rafters in the east end of the basement and found
additional ammunition for that gun behind a speaker in the basement bedroom. The
Ruger was the same make as the gun that Shawana had described to the 911 operator.
Neither the Lorcin nor the Ruger weapon bore appellant’s fingerprints. However, the
police found several pieces of mail addressed to appellant in the basement bedroom
where the Lorcin handgun was found. (Appellant did not live in his parents’ home but
was known to stay there at least two to three times per month.)
Following appellant’s arrest, on June 26 and 27, 1996, and later in November
1996, Minneapolis detectives conducted videotaped interviews of appellant that lasted
a total of 325 minutes. Ninety percent of the interviews dealt with appellant’s alleged
participation in a fatal drive-by shooting; only ten percent dealt with the firearm charges
in the instant case. During the interviews, appellant denied assaulting Shawana and
having any involvement with the Lorcin handgun. However, after initially denying
ownership of the Ruger pistol, on the second day of the interviews, appellant admitted
that his girlfriend, Lashawn Slayden (“Slayden”) had purchased the Ruger pistol for
3
him.4 Appellant also admitted to placing the Ruger pistol in the ceiling rafters in the
basement.
The officers interviewed Shawana the night of the assault and photographed her
showing a fresh bruise and lump on the right side of her forehead. Her version of events
at that time confirmed the allegations that she had made to the 911 dispatcher regarding
the assault. Shawana was interviewed by police four days later and gave the same
account. Shawana also retold this same version of events before the grand jury a few
months later. On the eve of testifying at trial, however, Shawana changed her story,
averring not only that she had lied about appellant assaulting her, but also that she, not
appellant, had hidden the guns in the basement of her parent’s home. When appellant
called Shawana to testify under subpoena, the district court warned Shawana that she
might face “very serious legal consequences” if her testimony at trial differed materially
from her testimony before the grand jury, and further, counseled her to seek the advice
of her own attorney. The government had contacted the public defender’s office about
appointing Shawana “independent counsel” after learning that she would testify that
appellant did not have a gun on the evening of June 25, 1996.
The district court ultimately summoned a federal public defender to advise
Shawana of the consequences of her testimony. After conferring with Shawana, counsel
from the public defender’s office informed the district court that Shawana did not want
counsel. T.T. I at 134. The following exchange occurred:
4
Appellant and Slayden were charged in a superseding indictment in the instant
case. Count 1 charged appellant with being a felon in possession of firearms. Counts
2-15 charged Slayden with being a straw purchaser of firearms. Count 16 charged both
Slayden and appellant with a conspiracy to obtain firearms through the use of false
statements on firearm acquisition forms (straw purchases). Slayden pleaded guilty to
Count 2 prior to trial and received a sentence of 18 months imprisonment.
4
MR. MOHRING [Counsel from the federal public defender’s office]: Your
Honor, I have had some time to talk with the witness. Because of the
conflict of interest,[5] I haven’t gone into any of the details of what her
testimony might be or what her prior testimony was. I cannot, therefore,
advise the court about whether she has Fifth Amendment exposure in that
arena or with respect to what her testimony is. Standard advice that I
would give to anybody who has any concerns in that area is that they speak
with a lawyer who can get into those details, and that would certainly be
my advice to this witness or anyone in her situation.
. . . [I]t’s not my understanding that the witness wishes counsel.
That is certainly against my advice, but that may be where she is at.
....
THE COURT: . . . . Mr. Mohring, I’m going to tell you what I’m going to
do, and then I am also going to tell you at the same time, Ms. Blanche, I
think I am going to continue this matter. I am going to ask you if you will
take Ms. Blanche with you and see if you can find somebody who is from
some other organization or someone else other than one of your colleagues
and get this young woman some advice, because it is my strong sense that
she needs some, and then she is free to make whatever decisions she
wishes, but I want to make sure they are informed decisions.
Ms. Blanche, do you understand what I have in mind?
THE WITNESS [Shawana Blanche]: Sure.
THE COURT: All right. Ms. Blanche, Mr. Mohring will help you find an
attorney, someone will come and talk with you. Now, listen to that person.
You are permitted to make any decisions you want, but nobody should
make a decision without understanding what happens if they make
5
Mr. Mohring suffered from a conflict of interest in light of the federal public
defender’s representation of Slayden in the underlying matter.
5
a particular decision, and so we will put this matter over until 9:00 o’clock tomorrow
morning.
THE WITNESS: Excuse me, but I have no misunderstandings right now.
I am ready to testify.
THE COURT: I appreciate that, ma’am, but one of the reasons lawyers go
to law school is they may know things that you don’t, and I would suggest
that it would be appropriate for you to chat to a lawyer before you testify
today.
MR. ORTH [Defense counsel]: I object to that procedure, Your Honor.
THE COURT: Your objection is noted, Counsel. Thank you.
Trial Transcript, Volume I, at 133-35. The following morning, after consulting with new
counsel, Shawana announced to the district court that she intended to invoke her Fifth
Amendment privilege not to testify. The district court then excused her from testifying.
Neither the government nor the district court would grant Shawana immunity at
appellant’s request.
At trial, Jacquelyn Blanche, Tynique Nako, and April Majors, eyewitnesses of the
June 25, 1996 incident, testified that appellant did not pull a handgun on Shawana and
did not have possession of a handgun during the argument. After the defense rested, the
district court ordered, sua sponte, appellant’s mother, father, and Shawana from the
courtroom in order to “maximize . . . opportunities” for their recall and in accordance
with the parties’ earlier agreement. Appellant’s mother and father had already testified
for the defense and, as noted above, Shawana had invoked her Fifth Amendment
privilege against self-incrimination. Appellant repeatedly objected to the sequestration
of his family on the ground that they would not be recalled as witnesses, and thus, their
sequestration violated his Sixth Amendment right to a public trial. Appellant’s parents
were not recalled and Shawana did not testify.
6
Appellant was convicted, following the jury trial, of being a felon in possession
of firearms in violation of 18 U.S.C. § 922(g)(1). This appeal followed.
Discussion
I. Due process violations
Appellant argues that he was effectively denied his due process right to a fair trial
as a result of the cumulative effect of several prejudicial errors at trial. Of most
significance on appeal are appellant’s allegations that the district court erred in soliciting
independent counsel for Shawana and in failing to grant immunity6 to her after she
invoked her Fifth Amendment right not to testify. Specifically, appellant contends that
“the government and the district court combined to insure [that] Shawana Blanche would
invoke the [F]ifth [A]mendment” and the jury would be denied her exculpatory evidence.
Brief for Appellant at 13. These “errors,” asserts appellant, coupled with the district
court’s admission of appellant’s jail cell conversation and the limitation of appellant’s
closing argument, deprived him of his due process right to a fair trial.
In support, appellant cites the law of several other circuits holding that the
government may be compelled to grant immunity to an exculpatory witness where
government overreaching has forced that witness to invoke the Fifth Amendment. See,
e.g., United States v. Abbas, 74 F.3d 506, 512 (4th Cir.), cert. denied, 517 U.S. 1229
(1996); United States v. Baker, 10 F.3d 1374, 1414-15 (9th Cir. 1993); United States v.
Follin, 979 F.2d 369, 374 (5th Cir. 1992); United States v. Bahadar, 954 F.2d 821,
6
At oral argument, appellant’s counsel stated that the issue was not the district
court’s and the government’s refusal to grant immunity, but rather, the violation of
appellant’s Fifth and Sixth Amendment rights to put on a defense. However, appellant
relied heavily on the district court’s and the government’s refusal to grant immunity as
the basis for his due process and fair trial claims both in his brief and at oral argument.
Accordingly, we address this issue squarely.
7
825-26 (2d Cir. 1992); United States v. Chalan, 812 F.2d 1302, 1310 (10th Cir. 1987);
Government of the Virgin Islands v. Smith, 615 F.2d 964, 968-69 (3d Cir.1980)).
Appellant argues that where, as here, both the government and the district court actively
encouraged the complaining witness to invoke the Fifth Amendment, this principle holds
even greater force. Appellant further contends that both the district court’s and the
government’s failure to grant Shawana immunity after she invoked the Fifth Amendment
compounded the error. Appellant challenges the district court’s and the government’s
refusal to grant immunity on the ground that the threat of prosecuting Shawana for
perjury was “chimerical” and in bad faith because it was unlikely that, Shawana, a minor
on medication and under psychiatric care, would be prosecuted.
“Traditionally, defendants have used two theories in presenting due process
arguments for immunization of defense witnesses. The first suggests setting the
conviction aside to permit the balanced immunization of witnesses; the second would
authorize judicial immunity.” United States v. Capozzi, 883 F.2d 608, 613 (8th Cir.
1989) (Capozzi). In the instant case, appellant does not allege that the government
granted use immunity to its witnesses but refused to immunize defense witnesses.
Rather, appellant relies on the second theory, “judicial immunity,” which holds that a
court has inherent power to immunize witnesses whose exculpatory testimony is
essential to an effective defense.
This court has consistently declined to apply the concept of judicial immunity.
See, e.g., United States v. Dierling, 131 F.3d 722, 732 (8th Cir. 1997) (Dierling), cert.
denied, 118 S. Ct. 1379 (1998); United States v. Stewart, 122 F.3d 625, 627 (8th Cir.
1997); United States v. Warfield, 97 F.3d 1014, 1020 (8th Cir. 1996) (Warfield), cert.
denied, 117 S. Ct. 1119 (1997); United States v. Robaina, 39 F.3d 858, 863 (8th Cir.
1994); Capozzi, 883 F.2d at 613-14; United States v. Doddington, 822 F.2d 818, 821
(8th Cir. 1987); United States v. Hardrich, 707 F.2d 992, 994 (8th Cir. 1983) (Hardrich).
This court has posited, however, that “[e]ven assuming a district court has authority to
immunize defense witnesses, . . . it is clear that such an order is an extraordinary
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remedy, to be used sparingly, and then only where the proffered evidence is ‘clearly
exculpatory.’” Capozzi, 883 F.2d at 614 (footnote and citations omitted); accord
Dierling, 131 F.3d at 732 (“Use immunity has been ordered elsewhere on occasion for
a witness with ‘clearly exculpatory’ evidence where there is no strong countervailing
interest of the government.”) (citing Government of the Virgin Islands v. Smith, 615 F.2d
at 972-73); Warfield, 97 F.3d at 1020 n.3 (“Even if we were to formally recognize the
concept [of judicial immunity], . . . the doctrine is applicable only if the proffered
testimony of the witness is ‘clearly exculpatory.’”) (citing Hardrich, 707 F.2d at 993-94).
We have not had the opportunity to address a case in which the evidence for which
immunity was sought was clearly exculpatory. See, e.g., Dierling, 131 F.3d at 732;
Capozzi, 883 F.2d at 614.
In Capozzi, the appellant argued that “the timing of the government's notification
of unindicted co-conspirators was designed and intended to intimidate and discourage
appellant’s witnesses thereby interfering with the fact finding process.” Id. This court
found, however, that “[t]he seven month period from indictment to trial was more than
an adequate time to prepare a defense. Moreover, the [indictees’ role in the underlying
offense] was known to all from the time the indictment was returned. Finally, there ha[d]
been no showing by appellant of prosecutorial misconduct in making its immunity
decisions.” Id. Thus, we held that the “extraordinary relief” of judicial immunity, if
available, could not be ordered where the appellant’s allegations of prosecutorial
misconduct were meritless. Id. We also considered the possible violation of the
appellant’s Sixth Amendment right to compulsory process,7 holding that, to establish
such a violation, a defendant must show the absence of material testimony favorable
7
In United States v. Capozzi, this court explained: “[T]he . . . Compulsory
Process Clause gives the defendant the right to bring his witness to court and have the
witness’s non-privileged testimony heard, but does [not] carry with it the additional
right to displace a proper claim of privilege, including the privilege against
self-incrimination.” 883 F.2d 608, 614 n.11 (8th Cir. 1989) (quoting United States v.
Turkish, 623 F.2d 769, 774 (2d Cir. 1980)).
9
to his or her defense. Id. (citing United States v. Rubin, 836 F.2d 1096, 1101 (8th Cir.
1988); United States v. Holtzen, 718 F.2d 876, 878 (8th Cir. 1983) (per curiam)). We
found that the appellant was permitted to present to the jury as much of the exculpatory
evidence as was necessary to his defense and therefore suffered no Sixth Amendment
violation. Id. at 615. We therefore refrained from resolving “the ultimate question of
whether a court has inherent authority to fashion such extraordinary relief as judicial
immunity of potential defense witnesses.” Id.
Likewise, in Dierling, the appellant sought to overturn his conviction on the
ground that the trial court erred in refusing to provide immunity for his witnesses after
the court appointed counsel for them and they were advised of their Fifth Amendment
rights. 131 F.3d at 732. We declined to examine “the policy implications of judicial
involvement in use immunity” on the ground that “[t]here was enough evidence to
convict the appellants of conspiracy without evidence of the killing, and there was no
deliberate distortion of the truth-finding process by the government, and no government
misconduct or threats to witnesses.” Id.
We examine appellant’s due process claims under the same analysis. Warnings
concerning the dangers of perjury can be emphasized to the point that they compel a
witness, by threat or intimidation, not to testify or to invoke the Fifth Amendment. See,
e.g., Webb v. Texas, 409 U.S. 95 (1972) (witness refused to testify for defense after the
trial judge singled him out for a lengthy admonition of the dangers and dire consequences
of perjury and suggested that he would testify untruthfully); United States v. Heller, 830
F.2d 150 (11th Cir. 1987) (defense witness was subjected to threats and interference of
I.R.S. agents who forced the witness accountant to testify falsely against defendant);
United States v. Morrison, 535 F.2d 223 (3d Cir. 1976) (defense witness asserted her
Fifth Amendment rights because the prosecutor repeatedly warned her of her liability to
the prosecution and held an intimidating personal interview with her). However, in such
cases, the government or judicial
10
conduct must be responsible for the violation of the defendant’s the right to present
witnesses on his or her own behalf to establish a defense.
In the instant case, we believe that the conduct of the government, in contacting
the public defender’s office, and the district court, in pointedly cautioning Shawana and
adjourning the proceedings to allow her to consult with new counsel over defense
counsel’s and her own unequivocal objection, came close to prosecutorial or judicial
overreaching to compel Shawana’s invocation of the Fifth Amendment. We do not find
error, however, in the district court’s solicitation of independent counsel for Shawana
or in warning her of the serious consequences of perjuring herself in light of the facts that
Shawana was a minor under psychiatric care and unrepresented by counsel.8 See Culkin
v. Purkett, 45 F.3d 1229 (8th Cir. 1995) (holding that trial judge “properly” warned
preadolescent witness who was unrepresented by counsel of the consequences of perjury
and appointed counsel for witness after she equivocated regarding her desire to testify
without advice of counsel). Further, we find that appellant was not effectively deprived
of a fair opportunity to present his defense. Appellant called to testify three
eyewitnesses whose testimony contradicted the government’s evidence and was
permitted to fully cross-examine the government’s witnesses. Finally, we defer to the
district court’s finding that the government acted in good faith in attempting to secure
independent counsel for Shawana. Indeed, the evidence suggests that Shawana reached
her decision not to testify after consulting with independent court-appointed counsel and
not as a result of government or judicial coercion. Accordingly, we again decline to
resolve “the ultimate question of whether a court has inherent authority to fashion such
extraordinary relief as judicial immunity of potential defense witnesses,” Capozzi, 883
F.2d at 615, where palpable judicial or government interference has been shown.
8
While we commend the district court for diligently protecting Shawana’s right
to advice of counsel, we caution district judges to refrain from assuming the role of
advocate even in such delicate circumstances as preventing a minor from exposing
herself to perjury charges.
11
As for the district court’s admission of appellant’s audiotaped jail cell
conversation with a Minneapolis police officer, we hold that the district court did not
abuse its discretion in admitting the audiotape as an admission of a party opponent,
under the Fed. R. Evid. 801(d)(2)(A), or as evidence of appellant’s motive, preparation,
and plan to commit the underlying offense, Fed. R. Evid. 404(b).
In addition, we hold that the district court did not unfairly curtail appellant’s
closing argument by barring appellant’s reference to the portions of the interview
videotape that were not presented to the jury. The government did not introduce the
other portions of the interview videotape at trial because they dealt with appellant’s
alleged participation in a fatal drive-by shooting. However, in a bench conference just
prior to trial, defense counsel stated that he intended to argue to the jury that the
government should have introduced the remaining portions of the videotape. The district
court responded that defense counsel could address the remaining portions of the
videotape in closing argument only if the government could reopen the evidence. We
hold that it was not error for the district court to bar appellant from referring in closing
argument to the remaining portions of the videotape. Those portions were obviously
prejudicial to appellant and therefore inadmissable. Moreover, there is no evidence in
the record that appellant suffered any prejudice as a result of the district court’s
limitation of his closing argument. Appellant had access to the entire six-hour videotape
and, by agreement, could have introduced into evidence any portion of the videotape that
would have been helpful to his defense. Further, appellant referred to the remaining
portions of the videotape in closing, despite the district court’s instruction, stating that
“there are about 325 minutes of videotape, and the government’s picked out three.”
Trial Transcript, Volume II, at 59. In light of the foregoing, we conclude that the district
court did not commit any error in violation of appellant’s due process right to a fair trial.
12
II. Sixth Amendment right to a public trial
In his brief on appeal, appellant contends that his Sixth Amendment right to a
public trial was violated by the exclusion of his mother, father, and Shawana from the
courtroom at the close of his case. At oral argument on appeal, appellate counsel limited
this contention to the exclusion of Shawana. Appellant asserts that because defense
counsel, as an officer of the court, assured the district court that Shawana would not be
called to testify, the district court had no basis for excluding Shawana. We hold that,
despite defense counsel’s averments, the district court had valid concerns under Rule
615 of the Federal Rules of Evidence9 in light of Shawana’s earlier vacillation regarding
her willingness to testify. Further, to the extent that the exclusion of Shawana (and her
parents) amounts to a partial closure of the proceedings, the district court made express
findings as to why partial closure was warranted under the circumstances. See Waller
v. Georgia, 467 U.S. 39, 45 (1985); see also United States v. Farmer, 32 F.3d 369, 371-
72 (8th Cir. 1994) (McMillian, J., dissenting) (“[T]he requirement that the trial court
make sufficient findings to allow the reviewing court to determine whether or not a
closure was justified is equally applicable in a case of partial closure.”). The district
court found that the parties’ prior agreement to sequester witnesses under Rule 615 and
the interest in maximizing appellant’s opportunity to present his defense through the
recall of his parents or the new testimony of Shawana justified partial closure.
Moreover, appellant has failed to demonstrate that he suffered any prejudice from the
partial closure. The record shows that the trial was nearly concluded at the time that
appellant’s family was excluded. We therefore hold that the district court did not abuse
its discretion in excluding appellant’s family from the courtroom.
9
Rule 615 of the Federal Rules of Evidence provides, in relevant part, that “[a]t
the request of a party the court shall order witnesses excluded so that they cannot hear
the testimony of other witnesses, and it may make the order of its own motion.”
13
III. Sufficiency of evidence
Finally, appellant asserts that there was insufficient evidence, as a matter of law,
to convict appellant of possession of the Lorcin handgun found in the basement bedroom
because of appellant’s repeated denial of involvement with the Lorcin handgun and the
government’s failure to link appellant through direct evidence to the purchase or
possession of the gun. Appellant argues that the jury could only have convicted him of
possession of a firearm if the jury was swayed by unfair prejudice. We disagree.
A verdict may be reversed for insufficiency of the evidence if, upon viewing the
evidence in the light most favorable to the verdict, no reasonable jury could have found
defendant guilty beyond a reasonable doubt upon the proof adduced. See United States
v. Wade, 111 F.3d 602, 604 (8th Cir. 1997); United States v. Stands, 105 F.3d 1565,
1570 (8th Cir. 1997). Here, the proof adduced by the government included (1) the taped
911 call made by Shawana accusing appellant of assault, identifying appellant, and
describing the gun ultimately found in the basement, (2) mail addressed to appellant
found in the same room where the Lorcin handgun was found, (3) appellant’s admission
that Slayden purchased the Ruger pistol for him, and (4) appellant’s admission that he
placed the Ruger pistol in the ceiling rafters in the basement.10 We hold that this
evidence is sufficient to support appellant’s conviction.
Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
10
In addition, the government established the other elements of the crime by
showing that both guns were in working order and had previously traveled in interstate
commerce and that appellant was a convicted felon.
14
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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