U.S. v. Blackwell

Decision Date10 December 1982
Docket NumberNo. 82-1261,82-1261
Citation224 U.S.App.D.C. 350,694 F.2d 1325
Parties, 12 Fed. R. Evid. Serv. 60 UNITED STATES of America v. Claude L. BLACKWELL, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Larry J. Ritchie, Washington, D.C. (appointed by this Court), for appellant.

Robert K. Reed, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., John A. Terry, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, and Percy H. Russell, Jr., Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before ROBINSON, Chief Judge, and WALD and GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Concurring opinion filed by Chief Judge ROBINSON.

WALD, Circuit Judge:

Following a jury trial on February 1-4, 1982, appellant, Claude L. Blackwell, was convicted of violating 18 U.S.C. app. Sec. 1202(a)(1) (possession of a firearm by a convicted felon) and 22 D.C.Code Sec. 3204 (carrying a pistol without a license). Blackwell was subsequently sentenced to a prison term of two to six years on the D.C.Code offense and a concurrent term not to exceed two years on the federal offense. On this appeal, Blackwell challenges the validity of his conviction on two grounds: (1) that four photographs showing Blackwell holding a gun were admitted into evidence at his trial in violation of Federal Rules of Evidence 901(a), 402, 403, and 404; and (2) that his sixth amendment right to have a witness testify on his behalf was violated by the prosecutor's and the trial judge's warnings to a defense witness that she could be prosecuted for perjury and lose the benefit of her plea bargain if she gave certain testimony. On the evidentiary issue, we hold that the trial court did not commit prejudicial error when it admitted the photographs in question into evidence. On the sixth amendment issue, we hold that the perjury warnings were proper. The warnings to the witness that her plea agreement might be revoked, however, reflected a misunderstanding of Rule 11 of the Federal Rules of Criminal Procedure and may have dissuaded Blackwell from presenting a witness in his defense. Nevertheless, we affirm the conviction because counsel failed to object to those remarks as inaccurate at trial, and they do not constitute plain error so as to be noticeable on appeal.

I. BACKGROUND

On September 10, 1981, Washington, D.C. police executed a search warrant at the Pitts Hotel, in a room rented by appellant's common-law wife, Lillie T. Robinson. Both Robinson and appellant, Claude L. Blackwell, were present in the room when the search occurred. During their search, the police seized two guns hidden in the room, a .357 magnum Dan Wesson revolver and a .38 Smith & Wesson revolver; a brown canvas bag containing both live and spent .357 and .38 ammunition, weapon cleaning and breakdown tools, a Smith & Wesson box bearing the same serial number as that of the seized .38 revolver, Blackwell's birth certificate, and a pawnbroker's certificate with Blackwell's name and address on it; marijuana; and four color photographs of Blackwell with a revolver similar to the .357 magnum discovered during the search.

Blackwell was subsequently charged with violating 18 U.S.C. app. Sec. 1202(a)(1) (possession of a firearm by a convicted felon), 1 21 U.S.C. Sec. 844 (possession of marijuana), 2 and 22 D.C.Code Sec. 3204 (carrying a pistol without a license). 3 Robinson was charged with violating 21 U.S.C. Sec. 844 and 22 D.C.Code Sec. 3204.

On February 1, 1982, the district court accepted a plea agreement by which Robinson pled guilty to the marijuana possession charge in return for the dismissal of the gun possession charge. On the same day Blackwell proceeded to trial on the two weapons charges, the government having dismissed the marijuana possession charge.

At trial, the government introduced into evidence all the weaponry seized during the September 1981 search and several black and white photographs of Robinson's hotel room taken during the search, which showed the two revolvers and their places of discovery, the brown canvas bag, and parts of the hotel room in the background. Over Blackwell's objection, it also introduced the four color photographs of Blackwell discovered during the search.

The defense presented two witnesses: Eleazar Williams, Jr., a friend of Robinson's, and Blackwell himself. Williams testified that on September 9, 1981, Robinson had accompanied him to a gun shop in Virginia, where he bought a .38 revolver and some ammunition. He then used the .38, as well as his own .357 magnum revolver, for target practice. On their way home, Williams stated, his truck broke down. He left Robinson in charge of the truck and guns and went in search of a friend to help him repair the truck. When he returned several hours later, he discovered that Robinson had left, taking the guns with her. Williams also testified that the guns seized in the search at Robinson's hotel room the next day were his.

Blackwell then took the stand, testifying that he did not live at Robinson's hotel room, but visited there about three times a week. He denied ever seeing the two revolvers before the police discovered them on September 10, 1981. He also stated that the brown canvas bag belonged to Robinson; that his birth certificate and the pawnbroker's ticket were on a nightstand in the room, not inside the bag; and that the four color photographs introduced by the government were taken at another hotel in 1977.

Blackwell had also planned to call Robinson as a defense witness at his trial. Her testimony, Blackwell's attorney later proffered, would have corroborated the testimony of Williams that Robinson, not Blackwell, had brought the guns to the hotel room. In addition, Robinson would have testified that Blackwell did not know of the presence of the guns in the room. Defense counsel first indicated to the trial court that he was going to subpoena Robinson to testify on behalf of Blackwell immediately after she entered her plea of guilty and before trial began. In response to this announcement, the prosecutor stated that he believed Robinson had a fifth amendment privilege not to testify because the charges against her were still pending. Robinson's attorney agreed, telling the court that he had advised her to invoke her fifth amendment privilege against self-incrimination and would like an opportunity to speak with her further on the subject.

On the second day of the trial, Robinson's attorney informed the court that, against his advice, Robinson had decided to waive her fifth amendment privilege. The prosecutor then asked permission to inquire into the voluntariness of Robinson's intended waiver, pointing out that there was a "close relationship" between Blackwell and Robinson and a "very substantial" question of perjury. The trial judge inquired of Blackwell's attorney whether Robinson was going to claim that the two guns were hers; he replied that she was not going to make that claim. The judge then questioned Robinson under oath, advising her that she still retained a fifth amendment privilege because she had not yet been sentenced and the gun possession charge was therefore still pending against her. The judge also told Robinson that if she testified falsely she would be subject to a charge of perjury. Robinson replied that she still wanted to take the stand and testify.

The court then gave the prosecutor permission to examine Robinson. He questioned her regarding her relationship with Blackwell; whether and when she and Blackwell discussed the possibility of her testifying on his behalf as well as the circumstances and the content of those discussions; why she wanted to testify; and if and why she wanted to waive her privilege against self-incrimination. His final question was, "[D]o you intend to claim possession of these weapons?" Although Robinson answered "No," the court sustained Blackwell's objection to the question, commenting that "if she were going to testify that the guns were hers, she would lay herself open to the case not being dismissed against her." Tr. at 133.

Later in the trial, the defense called Williams to testify. The prosecutor objected, requesting a proffer of his testimony. After Blackwell's attorney described what Williams' testimony would be, the judge commented that she had not understood that Robinson was going to testify that she had possession of the weapons. The judge was disturbed that Robinson would be in the "incriminating situation of bringing the guns into the District of Columbia herself," Tr. at 226, and remarked that if she testified as counsel had proffered, "[w]e obviously couldn't allow [the weapons charge] to be dismissed." Tr. at 228.

Apparently concerned that Robinson still did not understand that merely possessing, rather than owning, the guns would open her up to the gun possession charge, the court then questioned Robinson under oath once again, telling her that if she testified to possession of the weapons in the District of Columbia, she could be found guilty of the gun charge. Robinson replied that the guns were not hers and that she understood that just possessing them would make her liable for a gun possession charge. After this discourse, Blackwell's attorney stated to the court Blackwell's concern that if Robinson testified she would be prosecuted. The court replied, "She will. There is no doubt about it." Tr. at 263.

Immediately after the trial judge made these comments, Blackwell took the stand to acknowledge his understanding that Robinson, should she testify, might be prosecuted on the original indictment for possession of a pistol without a license and could also be prosecuted under Virginia law for transporting weapons into the District of Columbia. As a result, Blackwell stated, he would withdraw the subpoena that had been issued to Robinson.

On February 4, 1982, Blackwell...

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