U.S. v. Barker

• Decision Date: 06 October 1976
• Docket Number: No. 76-1240,76-1240
• Citation: 542 F.2d 479
• Parties: UNITED STATES of America, Appellee, v. John BARKER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 479

542 F.2d 479

UNITED STATES of America, Appellee, v. John BARKER, Appellant.

No. 76-1240.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1976.

Decided Oct. 6, 1976.

John H. Altergott, Jr. (argued), James W. McManus, Kansas City, Mo., on brief, for appellant.

Kenneth Josephson, Asst. U. S. Atty. (argued), Bert C. Hurn, U. S. Atty., Kansas City, Mo., on brief, for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and WEBSTER, Circuit Judges.

VAN OOSTERHOUT, Senior Circuit Judge.

An indictment filed in the Western District of Missouri on February 12, 1975, charged appellant John Barker, together with Raymond Dale Neal, Richard Fullerton, and James D. Kinnaird, Jr., with engaging in the business of dealing in firearms without a license, in violation of 18 U.S.C. §§ 922(a)(1) ¹ and 2. ² Barker was tried separately ³ to a jury on February 5-6, 1976. He was convicted and sentenced to five years imprisonment. This is a direct appeal from that conviction.

We briefly summarize at the outset the evidence adduced at trial. The Government's case was predicated from start to finish on the notion that Barker aided and abetted Neal, Fullerton, and Kinnaird in the illegal firearms business charged. ⁴ The case consisted primarily of testimony of four special agents of the Bureau of Alcohol, Tobacco & Firearms, United States Treasury Department, who had acted as undercover agents in the investigation which led to the instant prosecution. According to the testimony, on the evening of October 8, 1974, at a certain garage in Independence, Missouri, a number of the witnesses had purchased approximately sixteen firearms from Neal, Fullerton, and Kinnaird for approximately $900. Similarly, on the evening of October 16, 1974, at the same garage, they had purchased approximately twenty-two firearms from Neal and Kinnaird for approximately $1600. While and immediately after the second of these sales was being conducted, a number of the witnesses met with Fullerton and Barker at a bar about one mile from the garage. A conversation ensued in which Barker, according to the testimony, made several incriminating statements tending to link him with the sales at the garage. These alleged statements were that he (Barker) had been in on burglaries of the guns being sold, that he (Barker) was satisfied with the price paid for the guns, that he (Barker) was in Independence to sell some guns, and that "these are my guns."

The approximately thirty-eight firearms which the witnesses had purchased on the two evenings were placed in evidence over objection, and a stipulation was read to the jury to the effect that Barker had no license to sell firearms. A second stipulation, which was also read to the jury, recited that certain persons would, if called, testify that their homes had been burglarized and firearms stolen, that the burglaries and thefts had been reported to law enforcement officials, and that they could identify firearms bearing specific serial numbers as theirs, but that they could not identify the burglars.

There was no evidence that Barker personally sold any firearms or that he received any money directly from Government agents. The defense offered no evidence.

Among the alleged errors raised on appeal are the following:

I. The trial court erred in denying Barker's motions to dismiss the indictment and for judgment of acquittal in that, by reason of a confession by Barker to state authorities, he was accorded complete immunity from any prosecution, state or federal.

II. The trial court erred in denying Barker's motion for judgment of acquittal in that the jury was given no evidence on an essential element of the crime charged.

We agree with the district court that Barker was never accorded immunity from federal prosecution and affirm that court's denial of the motion to dismiss the indictment. In essence, however, we agree with the second contention listed above. We accordingly reverse the judgment of conviction on that ground and remand this case to the district court. We do not reach other issues raised.

I.

A threshold issue concerns whether the indictment should have been dismissed because, as alleged by Barker, he was accorded immunity from this prosecution. On February 17, 1975, five days after the federal indictment was returned, Barker gave an extensive in-custody statement ⁵ to Jasper County, Missouri, law enforcement officials. This statement, inculpatory in nature, was given following full Miranda warnings and a written waiver of constitutional rights. It was concerned in part with matters highly pertinent to the instant prosecution. The text of the statement reveals that the Missouri officials had represented that Barker would not be prosecuted and that the statement would be kept confidential. ⁶ Barker was not prosecuted by the State of Missouri on any charges concerning matters contained in the statement. However, the representation of confidentiality was not kept, as a copy of the statement was received by the United States Attorney's office which prosecuted this case. ⁷

On the basis of the facts just recited, Barker moved to dismiss the indictment. The district court, after conducting a pretrial evidentiary hearing, denied the motion on the understanding that the Government would not use the statement in its case in chief and on the further understanding that, in the event Barker testified at trial, the trial judge could rule at that time whether the statement could be used for impeachment purposes. Barker did not testify at trial, and the statement was not used at trial for any purpose.

Barker's contention, bottomed on the self-incrimination clause of the Fifth Amendment, is that the Missouri officials granted him immunity from prosecution for any crimes mentioned in the statement and that this fact, at least when coupled with the additional fact that the Government procured a copy of the statement, accorded him immunity from federal prosecution as well. This contention is plainly mistaken.

There are, of course, certain Fifth Amendment protections, discussed infra, which circumscribe a federal prosecution after a state has granted immunity. The initial difficulty in this case is that Barker was not, strictly speaking, granted immunity by the Missouri officials in accordance with Missouri statutes. Rather than being compelled to testify against himself by such an immunity grant, Barker agreed to testify against himself in exchange for a representation of nonprosecution. We bypass, however, whatever complications may arise by virtue of this difference. We assume, without deciding, that a defendant in the latter position is entitled fully to the protections afforded a defendant in the former position. We thus assume, without deciding, that Barker was, in essence, granted immunity from state prosecution in such a way as to invoke the principles discussed infra. Those principles do not warrant the dismissal of his indictment.

It is clear beyond doubt that one sovereign's grant of immunity is not ipso facto binding on another sovereign. As we stated in United States v. First Western State Bank, 491 F.2d 780, 783 (8th Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 49 (1974) The sovereign not offering immunity has the undeniable right to protect the integrity of its law enforcement prerogatives by prosecuting anyone who allegedly has committed an offense against its peace and dignity. When its own evidence and investigation discloses acts of criminal activity, an undeniable right to prosecute exists. This right cannot be controlled, thwarted, or diminished by another sovereign granting immunity from prosecution of a kindred offense.

Missouri officials could not and did not give Barker immunity from federal prosecution.

It is also clear, however, that once a state does compel a defendant's testimony through an immunity grant, the federal Government cannot take advantage of that testimony in order to obtain a conviction. This principle was set forth in Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). The Supreme Court held:

(A) state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits.

378 U.S. at 79, 84 S.Ct. at 1609. Moreover, once a defendant demonstrates that he has testified under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence. Id. n. 18. Accord, Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972).

In United States v. McDaniel, 449 F.2d 832 (8th Cir.1971), cert. denied, 405 U.S. 992, 92 S.Ct. 1264, 31 L.Ed.2d 460 (1972) (McDaniel I), appeal after remand, 482 F.2d 305 (8th Cir.1973) (McDaniel II), we applied the principles set forth in Murphy to a situation in which the federal Government had sought and obtained access to testimony compelled by a state grant of immunity. McDaniel I, the decision principally relied upon by Barker, might be read as setting forth a broad rule that, once the Government has sought and obtained access to such testimony, a federal indictment on charges related to the testimony must be dismissed. Of critical importance, however, is the fact that McDaniel I was decided prior to the Supreme Court's Kastigar decision, supra, which held that the Fifth Amendment requires only use and...