U.S. v. Castro

• Decision Date: 18 November 1997
• Docket Number: No. 97-1684,97-1684
• Citation: 129 F.3d 226
• Parties: 48 Fed. R. Evid. Serv. 35 UNITED STATES of America, Appellee, v. Christian CASTRO, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 226

129 F.3d 226

48 Fed. R. Evid. Serv. 35

UNITED STATES of America, Appellee, v. Christian CASTRO, Defendant, Appellant.

No. 97-1684.

United States Court of Appeals First Circuit.

Submitted Nov. 5, 1997.

Decided Nov. 18, 1997.

Jay P. McCloskey, United States Attorney, Bangor, ME, Margaret D. McGaughey and George T. Dilworth, Assistant United States Attorneys, Portland, ME, on brief, for appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

In this criminal appeal, defendant-appellant Christian Castro argues that the district court erred when it excluded the testimony of two prospective defense witnesses on the ground that each of them, if called to the witness stand, could and would invoke his Fifth Amendment privilege against self-incrimination. In addition, Castro asseverates that the prosecution's role in keeping one of these witnesses from testifying distorted the factfinding process and denied him a fair trial. Discerning no error, we affirm the judgment of conviction.

I. Background

A federal grand jury indicted the appellant on a charge of conspiring to possess cocaine base (crack cocaine) with intent to distribute. See 21 U.S.C. §§ 841(a)(1) & (b)(1)(B), 846. The charge arose out of the appellant's supposed involvement in a multi-faceted drug trafficking ring. The evidence at trial, viewed in the light most favorable to the government, see United States v. Maraj, 947 F.2d 520, 522 (1st Cir.1991), showed that the conspiracy flourished in mid-1994. The appellant's role was to deliver crack cocaine between Lawrence, Massachusetts and Lewiston, Maine. Upon arriving in Lewiston, the appellant would stay at one of several dwellings in which other coconspirators resided and would supervise the ensuing "retail" sales. The coconspirators were geographically dispersed and communicated largely by telephone. Many of the telephone numbers that they used were listed under false names.

At trial, the government presented a very strong case against the appellant. Among other things, several self-styled members of the conspiracy testified for the prosecution and inculpated the appellant. Faced with this array of turncoat witnesses, the appellant sought to call his brother, Manuel Enrque "Ricky" Castro, and a previously convicted coconspirator, Melvin "Bubba" Lagasse, as defense witnesses. Both men informed the district court that they intended to invoke the Fifth Amendment privilege against self-incrimination.

After the government rested, the court convened a voir dire hearing out of the presence of the jury. The court prudently required the parties to proceed in a question-and-answer format. Each witness was represented by an attorney. Defense counsel's questions to Ricky Castro focused on Ricky's knowledge anent (1) the appellant's relationship to numerous addresses, and his involvement with a particular dwelling (which the government contended was a "crack house"), and (2) various telephone numbers that other witnesses had said they used in the course of the conspiracy.

Ricky Castro invoked his Fifth Amendment privilege against self-incrimination and refused to testify concerning these matters. Defense counsel objected and asked the district court to compel responsive answers. Counsel argued that Ricky Castro's testimony would help establish salient points (e.g., that the appellant did not reside at the specified addresses; that he allowed friends to install a telephone under his name which he, himself, did not use; and that he had a different telephone number--not associated with the felonious activities--which he did use) without in any way incriminating the witness. Ricky's lawyer took a different view.

The trial judge upheld the claim of privilege. He found, first, that the requested information might tend to incriminate the witness, and second, that the government's cross-examination would likely delve into the scope and degree of the witness's knowledge of his brother's activities and could thus lead to inculpatory information. ¹

From Lagasse, defense counsel attempted to elicit a statement that the appellant was not involved in the drug trafficking operation. Counsel also sought to ask Lagasse about divers coconspirators' reputations for truthfulness. Lagasse invoked his Fifth Amendment privilege as to these questions. The district court rebuffed the appellant's argument that Lagasse did not face any real threat of incrimination because he already had been convicted on the conspiracy charge, finding that Lagasse had valid Fifth Amendment concerns in two respects: (1) his exposure to prosecution for one or more robberies which may have occurred in the same time frame as, and in relation to, the drug conspiracy, and (2) his exposure to prosecution for substantive drug offenses committed during and in the course of the conspiracy.

The trial concluded without testimony from either Ricky Castro or Bubba Lagasse. The jury found the appellant guilty as charged and Judge Hornby imposed sentence. This appeal followed.

II. Discussion

A. Standard of Review

In challenging the district court's determination that these witnesses invoked the Fifth Amendment privilege appropriately and in good faith, the appellant invites us to subject that determination to plenary review. We decline the invitation. The proper standard for appellate review of a trial court's determination that a witness validly invoked his Fifth Amendment privilege is abuse of discretion. See United States v. Gary, 74 F.3d 304, 310 (1st Cir.1996); United States v. Pratt, 913 F.2d 982, 990 (1st Cir.1990); see also Hoffman v. United States, 341 U.S. 479, 488, 71 S.Ct. 814, 819, 95 L.Ed. 1118 (1951) (explaining that the court of appeals should reverse such a determination only when it is "perfectly clear from a careful consideration of all the circumstances in the case" that the witness's testimony "cannot possibly have such tendency to incriminate").

Of course, abuse of discretion itself breaks down into different components. Within it, factual findings are often subjected to clear-error review, see, e.g., United States v. Perry, 116 F.3d 952, 957 (1st Cir.1997), whereas material errors of law constitute per se abuses of judicial discretion, see, e.g., Koon v. United States, 518 U.S. 81, ----, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996). Put another way, it is never within a trial court's discretion to make a determination that is premised on an incorrect legal standard.

B. The Fifth Amendment

The Fifth Amendment privilege against self-incrimination is an essential constitutional protection that is widely regarded as a cornerstone of our adversarial system of criminal justice. See Michigan v. Tucker, 417 U.S. 433, 439, 94 S.Ct. 2357, 2361, 41 L.Ed.2d 182 (1974). The privilege must not be given a crabbed construction. See In Re Kave, 760 F.2d 343, 354 (1st Cir.1985) (collecting cases).

Withal, the Fifth Amendment's prophylaxis is not available to all comers in all circumstances merely because they have the presence of mind to chant the accepted constitutional liturgy. To the contrary, the prospective witness must show at the very least that he is faced with some authentic danger of incrimination. See Hoffman, 341 U.S. at 486-87, 71 S.Ct. at 818-19; Pratt, 913 F.2d at 990; In Re Brogna, 589 F.2d 24, 27 (1st Cir.1978). This is not a particularly onerous burden. While chimerical fears will not suffice, the prospective witness need only limn some reasonable possibility that, by testifying, he may open himself to prosecution. See In Re Kave, 760 F.2d at 354.

The privilege cannot be invoked on a blanket basis. See In re Grand Jury Matters, 751 F.2d 13, 17 n. 4 (1st Cir.1984). It operates question by question. Thus, the district court must conduct a "particularized inquiry." Pratt, 913 F.2d at 990. For the privilege to attach, the questions and answers need not be directly incriminating. If a reply to a seemingly innocuous question reasonably will tend to sculpt a rung in the ladder of evidence leading to prosecution, the privilege appropriately may be invoked. See Hoffman, 341 U.S. at 486, 71 S.Ct. at 818; United States v. Johnson, 488 F.2d 1206, 1209 (1st Cir.1973). In other words, testimony which might lead indirectly to evidence that then could be used in a future criminal prosecution is eligible for Fifth Amendment protection. See Murphy v. Waterfront Comm'n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (1964). To like effect, a court ordinarily should not permit a witness to testify on direct if the court has adequate reason to believe that the witness validly will invoke the Fifth Amendment on cross-examination with regard to matters which are bound up with those discussed on direct. See Gary, 74 F.3d at 309.

In the last analysis, the nisi prius court should make a particularized finding as to the applicability vel non of the privilege and should elucidate its rationale. In reaching a decision as to whether a witness's testimony might tend to incriminate him, the court may of course take into consideration any personal perceptions gleaned from its observation of the prospective witness or from its hands-on involvement in the case. See Hoffman, 341 U.S. at 487, 71 S.Ct. at 818-19; United States v. Zirpolo, 704 F.2d 23, 25 (1st Cir.1983).

With this backdrop in place, we now consider the lower court's rulings in respect to each of the proffered witnesses.

C. Manuel Enrque "Ricky" Castro

The appellant argues that his brother should have been compelled to testify because answering questions that concerned the appellant's places of residence and telephone numbers "[b]y no stretch of the imagination" would have tended to incriminate Ricky. Relatedly, the appellant posits that the trial court had the power--indeed, the duty--to preclude the government from cross-examining the witness as to other, more sensitive matters (such as the basis for the witness's...