Salim v. United States

Decision Date12 September 1984
Docket NumberNo. 83-557.,83-557.
PartiesShaheed SALIM, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

A. Palmer Ifill, Washington, D.C., for appellant.

Terence J. Keeney, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Judith Hetherton, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before FERREN and ROGERS, Associate Judges, and SALZMAN, Associate Judge, Superior Court of the District of Columbia.1

ROGERS, Associate Judge.

Appellant contends on appeal that the trial court erred when it permitted two defense witnesses, who had previously testified before the grand jury which indicted appellant, to assert their Fifth Amendment privilege not to incriminate themselves. The government concedes that the trial court erred in permitting the witnesses to assert a Fifth Amendment privilege without determining whether and to what extent they had waived such privileges by testifying before the grand jury. We agree, and accordingly remand the case to the trial court for an evidentiary hearing on the scope and applicability of the witnesses' claimed privileges. Upon review of appellant's other claims of error, we find only one to be meritorious; that error, relating to the sufficiency of the evidence of value of the stolen property, requires that we vacate the felony conviction for receiving stolen property. On remand the trial court shall enter a judgment of conviction for the misdemeanor of receiving stolen property unless it determines, upon consideration of the Fifth Amendment issue, that a new trial is required on the misdemeanor charge.

I

Appellant was charged with grand larceny (D.C.Code § 22-2201 (1981)) receiving stolen property (felony) (id. § 22-2205) and obstruction of justice (id. § 22-703) as the result of allegations that he had stolen tools and automobile tires from a garage which he and one of the complaining witnesses owned. At the conclusion of the government's case-in-chief, the prosecutor tendered as potential defense witnesses Parker and Moore, two employees of appellant who had been subpoenaed by the government but were not called to testify. The government's evidence identified both young men as possibly having some complicity in the thefts. Both had testified before the grand jury and been informed of their Fifth Amendment right not to incriminate themselves; Parker had the benefit of counsel at that time, Moore did not. When appellant prepared to call Parker as a witness,2 the trial judge advised both Parker and Moore, who were juveniles, of their right not to incriminate themselves. When they expressed their desire to testify, the court appointed counsel to re-advise them and to review their grand jury testimony with them. Thereafter, both witnesses asserted a privilege in direct, unsworn testimony to the trial judge, who accepted their assertions.

The general rule is that a witness who voluntarily testifies in one proceeding does not waive his Fifth Amendment privilege in a separate proceeding.3 However, in Ellis v. United States, 135 U.S.App.D.C. 35, 44, 416 F.2d 791, 800 (1969), the District of Columbia Circuit held that

[a] witness who voluntarily testifies before a grand jury without invoking the privilege against self incrimination, of which he has been advised, waives the privilege and may not thereafter claim it when he is called to testify as a witness at the trial on the indictment returned by the grand jury where the witness is not the defendant, or under indictment.

That decision is binding on us under M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971). The rationale for the exception in this jurisdiction is that where there is a legally valid waiver of the privilege at the intitial proceeding, during which most of the evidence was disclosed, there is no real danger of legal detriment arising out of the second disclosure. See Alston v. United States, 383 A.2d 307, 313 (D.C. 1978), (citing Ellis, supra, 135 U.S.App.D.C. at 45, 416 F.2d at 801).

It nevertheless remains the duty of the trial judge (not the witness nor counsel) to determine whether a witness can properly assert the privilege. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). A witness' Fifth Amendment privilege is narrower than that of a defendant; a witness may not assert a blanket privilege when a narrower privilege will suffice to protect his interests. Id. at 486, 71 S.Ct. at 818 (Fifth Amendment protection for witnesses must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer); Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct. 697, 705, 19 L.Ed.2d 889 (1968); Letsinger v. United States, 402 A.2d 411, 416 (D.C. 1979); Vaughn v. United States, 364 A.2d 1187, 1189 (D.C. 1976). Additionally, the privilege of a witness who is not the accused generally exists only with regard to specific questions and does not encompass a refusal to take the stand. Alston, supra, 383 A.2d at 313. The trial judge can usually make a determination whether a witness has properly invoked the privilege only when the witness is sworn and invokes the privilege in response to specific questions. Vaughn, supra, 364 A.2d at 1189; United States v. (Thomas) Reese, 183 U.S.App.D.C. 1, 7, 561 F.2d 894, 900 (1977). However, the trial judge may bar a witness from testifying in the jury's presence upon a determination that the witness is asserting a proper claim of privilege which has not previously been waived and will refuse to answer any questions. Alston, supra, 383 A.2d at 313; (Gene) Reese v. United States, 467 A.2d 152, 157 (D.C. 1983).

In examining whether the witnesses had Fifth Amendment privileges, the trial judge herein inquired of the prosecutor (who stated there was a potential problem of the witnesses' complicity in the criminal activity and that no promises had been made to them) and allowed defense counsel to make a proffer of the testimony he sought to elicit from the witnesses. Upon advising the witnesses of their Fifth Amendment rights, and commenting on the possibility of perjury prosecutions, the trial judge appointed counsel for each witness and gave counsel copies of the witnesses' grand jury testimony. Thereafter, the witnesses' counsel stated that they had read the grand jury transcript and were satisfied that the witnesses had a legitimate basis for asserting their Fifth Amendment privilege. The trial judge did not inquire further, being satisfied that there was a reasonable basis for each to anticipate criminal liability from his testimony. When defense counsel requested that the trial judge review the grand jury testimony, he declined; when defense counsel stated he might limit the witnesses' evidence to their grand jury testimony, the trial judge was skeptical that this could be done since the prosecutor's cross-examination of the witnesses could possibly go into areas beyond their grand jury testimony. Ellis, supra, 135 U.S.App. D.C. at 47, 416 F.2d at 803.

We hold that the trial judge inadequately evaluated the witnesses' assertions of privilege. Alston, supra, 383 A.2d at 313; Vaughn, supra, 364 A.2d at 1189. He refused to inspect the grand jury testimony of Parker and Moore, failed to put them under oath, and accepted the assertions of their appointed counsel that there was a good faith basis for their assertions of privilege despite the fact both witnesses had testified at the grand jury. This was error; the trial judge must determine from all the circumstances whether the witnesses have a reasonable cause to apprehend a real danger of prosecution. (Gene) Reese, supra, 467 A.2d at 156-57. Because Parker and Moore had testified before the grand jury, a proper consideration of all the circumstances required the trial judge to examine the grand jury testimony and to conduct a voir dire of the two witnesses outside the presence of the jury. The judge should then have compared each witness' answers with his grand jury testimony on a question-by-question basis in order to determine whether either had waived his privilege and if not, whether either could testify at trial without "reasonable cause to apprehend danger," Hoffman, supra, 341 U.S. at 486, 71 S.Ct. at 818, from further incrimination. Ellis, supra, 135 U.S.App. D.C. at 46, 416 F.2d at 802; Gomez-Rojas v. United States, 507 F.2d 1213, 1220 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975) (custom is for trial court to examine witness outside the presence of the jury to determine the validity of a waiver of the privilege against self-incrimination).4

Since the trial judge erroneously accepted Parker's and Moore's assertions of privilege, the proper remedy is to remand the case to the trial court for an evidentiary hearing to determine whether and to what extent Parker and Moore waived their Fifth Amendment privilege by testifying before the grand jury. Gomez-Rojas, supra, 507 F.2d at 1220. In view of the possibly critical nature of the witnesses' testimony, a remand will enable the trial judge to examine the grand jury testimony to determine if the privilege has been waived, and the scope of the claimed privilege. Id. at 1220. On remand, Parker and Moore should be sworn, and appellant should be permitted to put relevant questions to them; the witnesses should be required to assert any privilege on a question-by-question basis.5 The same procedure should be followed with respect to government cross-examination. With a copy of each witness' grand jury testimony the trial court can determine, with respect to any assertion of privilege, whether the witness has waived the privilege. In the event either witness has a valid privilege which he has not waived, the trial court may, in its discretion, refuse to allow the witness to take the stand, if it determines that the...

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