U.S. v. Doddington

• Decision Date: 08 July 1987
• Docket Number: No. 86-5186,86-5186
• Citation: 822 F.2d 818
• Parties: UNITED STATES of America, Appellee, v. Frederick Gordon DODDINGTON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 818

822 F.2d 818

UNITED STATES of America, Appellee, v. Frederick Gordon DODDINGTON, Appellant.

No. 86-5186.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1986.

Decided July 8, 1987.

Barry V. Voss, Minneapolis, Minn., for appellant.

Joan M. Ericksen, Asst. U.S. Atty., Minneapolis, Minn., for appellee.

Before McMILLIAN, BOWMAN, and MAGILL, Circuit Judges.

BOWMAN, Circuit Judge.

Frederick Gordon Doddington appeals from the District Court's entry of judgment and sentence following a jury verdict of guilty on one count of possessing and aiding and abetting the possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. On appeal Doddington argues that (1) the District Court deprived him of his Fifth Amendment right to due process of law and his Sixth Amendment right to compulsory process when it refused to grant "judicial immunity" to a defense witness and thereafter instructed the jury to disregard completely the testimony of that witness after the witness persisted in invoking his Fifth Amendment privilege against self-incrimination and (2) the District Court abused its discretion when it admitted into evidence certain prosecution evidence for which the chain of custody had not sufficiently been established. We affirm.

I.

On July 25, 1985, Edina, Minnesota police officer Christopher Omodt observed a car with a license plate that appeared to have been altered. Omodt stopped the car and arrested the driver, Gary Mattson, after discovering that the vehicle registration and Mattson's driver's license had been revoked. While Mattson was being placed in the police car, Doddington (who was a passenger in the Mattson car) requested and received permission from Omodt to move the car out of the flow of traffic. Officer Omodt thereafter viewed Doddington making reaching motions toward the back seat and under the front seat. When Omodt went to investigate, Doddington approached him carrying two dark nylon bags. When Officer Omodt asked about the contents of the bags, Doddington held them behind his back in an apparent attempt to shield them from view and responded, "They're Gary's. He asked me to get them for him." Omodt demanded and received the two bags. As Omodt opened the first bag (Bag A, Government Exhibit (Ex.) 1-A), Doddington stated, "You can't look in the bags. They're out of the car." Officer Omodt proceeded to search the bag and discovered, inter alia, several yellow valium tablets and Doddington's driver's license. Doddington then was placed under arrest. A search of the second bag (Bag B, Ex. 2-A) disclosed approximately $10,000 in $20 and $100 bills, several packets of a white powder later determined to be methamphetamine, a contact lens case containing some valium tablets, a scale, a silver spoon, and two magazines with Doddington's name and address on the mailing label. After apprising Doddington of his Miranda rights, Officer Omodt asked him to whom the valium belonged. Doddington responded, "The valium is mine." He also stated that he was in the process of changing the $20 bills into $100 bills for an unidentified friend.

During a subsequent search incident to the arrest, Officer Robert Buie found a small pouch around Doddington's neck that contained a small plastic packet of white powder and $1030 in cash. After placing the white powder and money in plastic evidence envelopes, Officer Buie sealed the envelopes and inventoried the evidence. He then gave the evidence to a Sergeant Cane, who secured it in an evidence locker.

At trial Jack Raney, a forensic chemist for the Drug Enforcement Administration (DEA), testified that he analyzed the 110 grams of white powder found in Bag B (Ex. 2-D) and the 1.2 grams of white powder found in Doddington's neck pouch (Ex. 3-B) and determined that both substances were methamphetamine. Raney stated that Ex. 2-D was 27% pure and that Ex. 3-B was 25% pure, and opined that both exhibits could have come from the same source.

II.

A.

Doddington first asserts that the District Court's refusal to grant "judicial immunity" to Gary Mattson, an unindicted coconspirator who was called as a witness on behalf of the defense, deprived him of his Sixth Amendment right to compulsory process. Specifically, Doddington argues that the District Court's denial of judicial immunity to Mattson, whose testimony allegedly was consistent with Doddington's defense and would have exculpated Doddington and provided favorable inferences regarding ownership of the drugs found in Mattson's car, precluded him from presenting an effective defense at trial. Doddington also argues that the District Court's striking of Mattson's testimony in its entirety after Mattson persisted in asserting his Fifth Amendment privilege against self-incrimination (thus precluding cross examination by the government) denied him due process of law and was an abuse of discretion.

At trial, Gary Mattson was subpoenaed and called as a witness by the defense. He had not testified during the prosecution's case-in-chief. Prior to his testifying, the court asked Mattson whether he intended to invoke his Fifth Amendment right against self-incrimination. After conferring with an attorney, he agreed to testify. On direct examination by defense counsel, Mattson acknowledged that he was the owner of the car in which he and Doddington were riding when they were arrested. He testified that after his arrest he told Officer Omodt that the second nylon bag (Bag B, Ex. 2-A, which contained Ex. 2-D, the 110 grams of methamphetamine) belonged to him and that his Lark cigarettes (which he had requested immediately after his arrest) could be found in that bag. Mattson apparently was not shown or told of the contents of the bag before being asked by Omodt whether he owned it. Mattson testified that he had a prior drug conviction for possession of LSD and previously had "dropped speed" (methamphetamine). He was asked by defense counsel if the glasses he then was wearing were prescription glasses. Following his affirmative response, defense counsel asked whether he owned the contact lens case (Ex. 2-G) that was found in the second bag (Bag B, Ex. 2-A). Mattson immediately invoked his Fifth Amendment privilege. At a bench conference Mattson's attorney told the court that his client possibly would answer questions on other subjects, but not any questions regarding the contact lens case. The court stated, "The problem is that it puts the government in a very awkward position, because that jury could well infer that his taking the Fifth could involve his ownership and possession of the drugs that are [the] gravamen of this case." Trial Transcript (Tr.) 305. The court ruled that defense counsel's questioning could continue provided that no reference to the contact lens case be made. Mattson then was asked about several items found in the trunk of his car (some of which were illegal drugs and drug paraphernalia), and he again invoked his Fifth Amendment privilege.

During a short recess, Mattson's attorney informed the court and counsel that Mattson would assert his Fifth Amendment privilege against self-incrimination to all questions asked by either defense counsel or the government. The court then stated, "Under those circumstances, pursuant to U.S. versus Cardillo, 316 F.2d 606, [2nd Cir.1963], I will instruct the jury to completely disregard his testimony." Tr. 310-311. Defense counsel objected and argued that the court's ruling denied Doddington his "right to confront his accuser." Defense counsel then stated:

I think it's extremely important for the defense to be able to present a defense and get a fair trial. For that reason, I would ask this Court to require the government to grant Mr. Mattson immunity.... I don't have case law to indicate that this Court has the authority to order it, but I do think that in the interest of justice and so that this jury gets all [the] facts, the prosecutor is in a position to grant this witness immunity....

Tr. 312. The court stated that it did not have the authority and was not in a position to order the government to grant immunity to Mattson and denied defense counsel's request. Mattson then returned to the witness stand and invoked his Fifth Amendment right to three consecutive questions asked by defense counsel. Mattson invoked the privilege twice to three questions on cross examination by the government. The court then excused Mattson and instructed the jury to disregard his entire testimony since the government had no opportunity to cross examine him on any matters testified to on direct examination.

We can summarily reject Doddington's first point on appeal regarding the court's refusal to grant judicial immunity. It is clear from the trial transcript (the relevant portion of which was quoted above) that Doddington's defense counsel requested the court to order the government to grant statutory immunity to Mattson, and not judicial immunity as he now claims on appeal that he did. ¹ Thus, we will review only the District Court's ruling on the issue of statutory immunity under an abuse of discretion standard.

A procedure for the granting of use immunity with respect to potentially incriminating testimony is provided in 18 U.S.C. Secs. 6002 & 6003. This statute, however, is of no avail to Doddington. The Supreme Court has held that statutory immunity may be granted only at the request of the Attorney General or a designated officer of the Department of Justice. "No court has authority to immunize a witness." Pillsbury Co. v. Conboy, 459 U.S. 248, 261, 103 S.Ct. 608, 616, 74 L.Ed.2d 430 (1983); see also United States v. Doe, 465 U.S. 605, 616, 104 S.Ct. 1237, 1244, 79 L.Ed.2d 552 (1984) ("We decline to extend the jurisdiction of courts to include prospective grants of use immunity in the absence of the formal request that the statute requires."). Thus, the District Court had no authority (as it correctly...