U.S. v. Gary

• Citation: 74 F.3d 304
• Decision Date: 14 September 1995
• Docket Number: No. 95-1113,95-1113
• Parties: UNITED STATES, Appellee, v. Raymond J. GARY, Defendant-Appellant. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 304

74 F.3d 304

UNITED STATES, Appellee, v. Raymond J. GARY, Defendant-Appellant.

No. 95-1113.

United States Court of Appeals, First Circuit.

Heard Sept. 14, 1995.

Decided Jan. 5, 1996.

Marie T. Roebuck, Providence, R.I., for appellant.

Sheldon Whitehouse, United States Attorney, with whom Gerard B. Sullivan and Margaret E. Curran, Assistant United States Attorneys, were on brief for appellee.

SELYA and BOUDIN, Circuit Judges, and SARIS, ^* District Judge.

SARIS, District Judge.

After his first jury trial ended in deadlock, defendant Raymond J. Gary ("Gary") was convicted by a second jury of possession of a firearm by a felon, in violation of 18 U.S.C. Sec. 922(g). He was sentenced to over twenty-four years incarceration as an armed career criminal pursuant to 18 U.S.C. Sec. 924(e).

Gary raises six issues on appeal: (1) whether the district court violated his Sixth Amendment right to compulsory process by precluding him from calling a defense witness who would provide exculpatory information on direct examination but would assert the Fifth Amendment with respect to non-collateral issues on cross-examination; (2) whether the district court erred in finding that this defense witness had not waived his Fifth Amendment privilege against self-incrimination by virtue of his testimony at the first trial; (3) whether the government properly sought authorization to prosecute under the U.S. Justice Department guidelines regarding dual federal-state prosecutions (i.e., the "Petite policy"); (4) whether Gary was selectively prosecuted on account of his race; (5) whether Gary received a fair trial in light of the government's reliance on what he contends was "perjured testimony by a law enforcement official"; and (6) whether the district court misapplied U.S.S.G. Sec. 4B1.4 in determining Gary's total offense level. ¹ We affirm the conviction and sentence.

I. STATEMENT OF THE CASE

A. FACTS

We set forth the evidence in the light most favorable to the verdict. United States v. Tuesta-Toro, 29 F.3d 771, 773 (1st Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 947, 130 L.Ed.2d 890 (1995).

On May 14, 1994, Gary and a friend, Eric Hopkins, spent part of the evening going to nightclubs. After midnight, Patrolman James Joseph Corry of the North Providence Police Department encountered Gary and Hopkins when they were attempting to break into Rhode Island Auto Radio. Earlier that evening, they had stolen some vases from a furniture store elsewhere in North Providence. Upon seeing Corry, Hopkins fled on foot and Gary attempted to escape by car at high speed. Gary lost control of the vehicle, which left the road and struck the foundation of an adjacent building. Corry caught up to Gary as he was attempting to exit the wrecked automobile. Gary resisted arrest, and the efforts of several officers were necessary to subdue him. Once the officers successfully apprehended Gary, they conducted a "pat-down" search for weapons. At that time, a loaded and fully-operable Colt .25 caliber handgun fell from Gary's waistband. Hopkins also was arrested, and a Dickson .25 caliber semi-automatic pistol was seized from him. Hopkins later admitted to possessing the firearm.

B. PROCEEDINGS BELOW

Gary and Hopkins each were initially charged in state court with violations of the Rhode Island General Laws. ² On June 9, 1994, a federal grand jury returned an indictment charging both with possession of a firearm by a felon in violation of 18 U.S.C. Sec. 922(g). On August 31, 1994, the government filed a notice that, if Gary was convicted, it would seek a penalty enhancement pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. Sec. 924(e)(1). Hopkins pled guilty, on September 8, 1994.

From October 13 to 17, 1994, Gary was tried by a jury before Judge Raymond J. Pettine. Hopkins, who was represented by counsel, testified on Gary's behalf and was cross-examined by the government concerning the break-ins, the circumstances of the arrest, and the firearms. The proceedings ended in a mistrial when the jury announced that it was unable to reach a verdict.

Gary's case then was transferred to Judge Mary M. Lisi, before whom the second jury trial commenced on October 25, 1994. When Gary attempted to call Hopkins to the stand, however, the government objected on the grounds that Hopkins would invoke his Fifth Amendment right against self-incrimination during cross-examination. At a conference and subsequent voir dire outside the presence of the jury, Gary proffered that Hopkins would testify that, while they were together at nightclubs on the night of May 14, 1994, he never saw Gary possess a firearm and that they were together until approximately ten minutes preceding the automobile wreck after which Gary was arrested. In the voir dire, Hopkins asserted his privilege against self-incrimination in response to questioning about the breaking and entering, which immediately preceded his arrest. Hopkins was then facing pending state breaking and entering charges and a parole revocation proceeding and had not yet been sentenced on the federal charge.

Although Hopkins had testified in the first trial regarding the breaking and entering and had been assisted by counsel at that time, the court held that his prior testimony was not a voluntary, knowing, and intelligent waiver of his Fifth Amendment privilege, particularly because Hopkins' separate counsel for the state proceedings had not been informed that Hopkins would be appearing in federal court. ³ Moreover, the court held that the government's intended cross-examination regarding the breaking and entering was "germane" and "permissible" and thus refused to restrict its scope.

After excusing Hopkins from testifying, the court permitted Gary to introduce Hopkins' prior recorded testimony from the first trial by having it read to the jury by Hopkins' state counsel. Notwithstanding this ruling, Gary argued that his Sixth Amendment right to compulsory process was violated and moved for a mistrial on that ground. This motion was denied.

The jury returned a verdict of guilty on October 28, 1995. Gary was sentenced as an armed career criminal to twenty-four years and two months imprisonment, five years of supervised release, and a $50 special assessment. Judgment was entered on January 19, 1995, and Gary filed a timely notice of appeal.

II. ANALYSIS

A. Sixth Amendment Compulsory Process

This case requires us to harmonize a conflict between a defendant's Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor," U.S. Const. amend. VI, and the government's interest in cross-examining a defense witness who has invoked his Fifth Amendment right against self-incrimination.

Gary contends that his right to compulsory process was denied when the trial court refused to permit Hopkins to testify and instead only permitted Hopkins' testimony from the first trial to be read to the jury. Gary argues that the trial court should have required Hopkins to invoke his right against self-incrimination during cross-examination in the jury's presence.

"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.... This right is a fundamental element of due process of law." Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967); see also Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). The Sixth Amendment, however, does not provide "an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence." Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988). As the Supreme Court noted in an opinion upholding a trial judge's decision to preclude a defense witness's testimony on evidentiary grounds, "[t]he Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversary system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." United States v. Nobles, 422 U.S. 225, 241, 95 S.Ct. 2160, 2171, 45 L.Ed.2d 141 (1975).

While the government's interest in cross-examining defense witnesses is not rooted in the Constitution, see United States v. Pardo, 636 F.2d 535, 542 n. 21 (D.C.Cir.1980) ("The government of course has no Sixth Amendment or other constitutional right to cross-examine defense witnesses."), one of the legitimate demands of the adversary system is the right of cross-examination. See Fed.R.Evid. 611(b) (permitting cross-examination "limited to subject matter of the direct examination and matters affecting the credibility of witness"). "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested." Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). As Professor Wigmore stated:

The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.

5 J. Wigmore, Evidence Sec. 1395, at 150 (Chadbourne rev. 1974) (emphasis in original), quoted in Davis, 415 U.S. at 315-16, 94 S.Ct. at 1110; see also United States v. Stubbert, 655 F.2d 453, 457 (1st Cir.1981) (quoting same).

Courts have not permitted defendants to call witnesses to the stand who have indicated that they will refuse to answer the government's questions on cross-examination with respect to non-collateral matters. In United States v. De La Cruz, 996 F.2d 1307 (1st Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 356, 126 L.Ed.2d 320 (1993), the defendant called his friend and former...