U.S. v. Bridges
| Decision Date | 23 September 1983 |
| Citation | 717 F.2d 1444,230 U.S. App. D.C. 387 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeals from the United States District Court for the District of Columbia (D.C. Criminal Nos. 82-00254-02 & 82-00254-01).
Michael S. Frisch, Washington, D.C., appointed by this Court, for appellant in 82-2482.
Peter E. George, Washington, D.C., appointed by this Court, for appellant in 83-1116.
Ava J. Abramowitz, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Michael W. Farrell, Judith Hetherton, and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief for appellee.
Before WILKEY and SCALIA, Circuit Judges, and WEIGEL, * Senior District Judge, United States District Court for the Northern District of California.
Opinion for the Court filed by Circuit Judge WILKEY.
The appellants in this case, Otis Melvin Bridges and Denise Harley, were both convicted in the trial court of making false declarations before a grand jury 1 and obstruction of justice. 2 Each received consecutive three year sentences on each count. Both now appeal from the convictions; in addition, Harley challenges the imposition of consecutive sentences. We affirm the trial court.
On 3 September 1981 the Metropolitan Police Department received an anonymous tip that a burgundy Granada parked at the corner of Martin Luther King Avenue and Talbot Street held in its trunk 600 packages of heroin. The police responded promptly to the tip, dispatching no fewer than three police cruisers. At the scene the police found a red Thunderbird. The police observed the car briefly, then sought permission to search it from its owner. The owner, Denise Harley, at first acquiesced, then changed her mind and insisted that the police obtain a search warrant.
Officer Alfred McMaster impounded the car, so as to hold it until a search warrant could be obtained. Officer McMaster turned the keys to the car over to Officer James Carpenter, and instructed him to take the car to the 7th District Police Station. Carpenter testified at trial that he drove the car directly to the police station with no intervening stops. 3
The presence of the appellants before this court results from a different story they have told about the progress of the car to the 7th Precinct. On the morning the car was impounded, Harley contacted an attorney, Kenneth Michael Robinson, and told him that she had witnessed a warrantless search of her car. Harley told Robinson that the police had stopped the car in route to the police station, and searched the trunk and glove compartment. Robinson told Harley that such a search would be improper, and Harley expressed a desire to enter a formal complaint.
Early that same afternoon, Robinson took Harley--along with Walter Stringer, Donny Wise and Otis Bridges--to the office of Assistant United States Attorney Paul Murphy. The four asked to testify before a federal grand jury about the alleged illegal search of Harley's car. Murphy agreed.
Murphy explained to the grand jury that his interest in the allegations was piqued by his express instructions to McMaster before the car was impounded to search it only after obtaining a warrant:
[They] are out there, and they are willing to testify under oath that they saw the police pull her car over, and that they were behind in another car, and they watched the trunk come up and other policemen gather around and look in the trunk and search the car completely.
Now, if that is the case, I won't have it, because I find that to be reprehensible, particularly--if it is true--particularly, if I just got off the phone and told them to do the right thing. It just really makes me angry. 4
Murphy cited to the grand jury two possible jurisdictional bases for the grand jury inquiry: 21 U.S.C. Sec. 841(a), a statute prohibiting drug trafficking, and the Fourth Amendment to the Constitution. 5
Both appellants appeared before the grand jury that afternoon. According to Harley, she and her companions had followed her car to the police station. From their vantage point about a block behind, she said, they had witnessed the police stop the car near 15th Street and Mississippi Avenue, S.E. She testified that eight plainclothesmen, including Officer McMaster, surrounded the back of her automobile and opened the trunk for an inspection, while Officer Frederick McDonald searched the glove compartment. 6 Bridges' testimony differed only in minor details. 7
In the middle of the grand jury testimony, Murphy spoke with Officer McMaster. McMaster denied that an illegal search had occurred. Instead, McMaster told Murphy, a proper search warrant had been secured at 2:00 p.m. and a legal search performed at 3:00 p.m. The search showed that the car contained no packets of heroin.
The grand jury took no formal action based on testimony provided by the volunteer witnesses. 8 Seven months later, however, Assistant U.S. Attorney Timothy J. Reardon interviewed both Donny Wise and Walter Stringer in connection with a case pending against Harley's husband, Darnell Jackson. Both Wise and Stringer independently told Reardon that the story about the illegal search had been fabricated. Both said that they had seen the car stopped, but that they had not witnessed an illegal search. 9
Reardon presented both men to a new grand jury on 1 April 1982. Harley and Bridges were subsequently indicted, tried and convicted on charges of obstruction of justice and making false declarations before a grand jury. Harley was also convicted on a charge of making a false report to the Metropolitan Police Department. Both were acquitted of subornation of perjury. Both Harley and Bridges were sentenced to consecutive three year terms of imprisonment on the obstruction of justice and false declaration charges. Harley received a concurrent thirty day sentence on the false report offense.
These appeals raise four issues: (1) whether the grand jury to which Harley and Bridges testified had jurisdiction to investigate the alleged illegal search; (2) whether the testimony of the two was material to the grand jury investigation; (3) whether photographs of the scene where the search purportedly took place were properly admitted; and (4) whether entering consecutive sentences for the false declarations and obstruction of justice convictions offends the Double Jeopardy Clause of the Constitution.
Both appellants challenge the legitimacy of the grand jury investigation. Each charges that the alleged illegal search was not within the grand jury's jurisdiction. 10 Underlying this argument is the assumption that the alleged search of Harley's trunk could not possibly lead to criminal charges against the officers, and that any use of the grand jury to investigate the alleged search thus amounts to an abuse of the grand jury system.
We find that the grand jury investigation was legitimate. At the time the appellants asked to go before the grand jury, the information available to Assistant U.S. Attorney Murphy was very limited, but very disturbing: four apparently disinterested citizens accompanied by a member of the defense bar were accusing a police officer with a willful violation of the Fourth Amendment.
The alleged illegal search, taken alone, would itself be grounds for a grand jury investigation. The illegal search would constitute a civil rights violation remediable through the federal civil rights laws. 11 Such unconstitutional abuses have led to criminal prosecutions within this jurisdiction. 12
Taken in the context of the narcotics investigation--the investigation into the alleged presence of 600 packets of heroin in the trunk of the car--the illegal search would be even more troubling. If the search had occurred the way Harley and Bridges described it, it could have related to the narcotics investigation in a number of ways: it could have suggested the illegal "planting" of evidence; it could have suggested the theft or destruction of evidence. It could have rendered useless any evidence subsequently obtained through a legal search.
In these circumstances putting the volunteer witnesses before the grand jury was anything but an abuse of the grand jury process. The testimony proffered could lead directly to action against the officers; it could also lead to reconsideration of criminal charges against others based on investigations carried out by the officers involved. The U.S. Attorney had every right to investigate the charges made by the four volunteers, and that right was not abrogated because human prescience did not allow him to predict whether the investigation would ultimately lead to civil rights violations, to ancillary but critical aspects of an ongoing narcotics investigation, to neither, or to both.
Both appellants argue that the government failed to establish properly that their testimony before the grand jury was material to the grand jury investigation. Appellant Bridges argues that the testimony of Assistant U.S. Attorney Murphy was insufficient to establish materiality. 13 Appellant Harley argues that the issue of materiality should have gone to the jury as a question of fact to be proved beyond a reasonable doubt, rather than being determined by the judge as a matter of law. 14
The transcript indicates that the government introduced sufficient evidence to show that the false testimony was material. The testimony of Assistant U.S. Attorney Murphy at trial, 15 coupled with the introduction into evidence of the appellants' grand jury testimony, 16 was fully sufficient to show materiality.
We also reject appellant Harley's contention--unsupported by...
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