U.S. v. Highgate

• Decision Date: 07 April 2008
• Docket Number: No. 06-1447.,06-1447.
• Citation: 521 F.3d 590
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles HIGHGATE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

521 F.3d 590

UNITED STATES of America, Plaintiff-Appellee, v. Charles HIGHGATE, Defendant-Appellant.

No. 06-1447.

United States Court of Appeals, Sixth Circuit.

Argued: February 1, 2008.

Decided and Filed: April 7, 2008.

ARGUED: Andrew N. Wise, Federal Defender Office, Detroit, Michigan, for Appellant. Kevin M. Mulcahy, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Andrew N. Wise, Federal Defender Office, Detroit, Michigan, for Appellant. Kevin M. Mulcahy, Assistant United States Attorney, Detroit, Michigan, for Appellee.

Before: MERRITT, GILMAN, and COOK, Circuit Judges.

OPINION

COOK, Circuit Judge.

A jury convicted Charles Highgate of drug- and firearm-possession charges, and the district court sentenced him to an aggregate prison term of 360 months. Highgate appeals his conviction, arguing that a defense witness who invoked his Fifth Amendment privilege was improperly dismissed because the court did not inquire into the witness's reasonable fear of prosecution. While we agree that the district court erred in accepting the witness's blanket assertion without further probing, we affirm Highgate's conviction because we find any resulting error harmless. Highgate also appeals his sentence, arguing that the court improperly treated the Sentencing Guidelines as mandatory and inadequately explained its analysis of the 18 U.S.C. § 3553(a) factors. Because the district court's equivocation at sentencing does not assure us that it appreciated its full sentencing discretion, we vacate Highgate's sentence and remand for resentencing consistent with this opinion.

I

A

On May 8, 2004, police executing a valid search warrant at a Detroit residence saw Highgate secreting things beneath a tire in the backyard. A search of that tire revealed a loaded firearm and multiple packages of cocaine and heroin. Police who entered the home's front door surprised LaFrederick Jones, who dropped bags of drugs to the floor upon seeing the officers.

A federal grand jury indicted Highgate for being a felon-in-possession of a firearm, 18 U.S.C. § 922(g); possession with the intent to distribute heroin and cocaine, 21 U.S.C. § 841(a); and possession of a firearm during and in relation to a drug offense, 18 U.S.C. § 924(c). Jones was separately charged by state authorities.

At Highgate's trial, Officer Eric Jarmons testified that he arrested Highgate, and five other testifying officers corroborated this account. After the government rested, Highgate planned to call LaFrederick Jones as a witness, but before Jones took the stand, the prosecutor informed the court that "the marshal said that [Jones] was thinking about whether or not he could take the Fifth Amendment. And so I would hate to call him out here, throw him on the stand, until we clarified that that — you know, what's going on." Based on this development, the court called a recess, instructing defense counsel to "find out if he's going to testify."

When defense counsel returned, he first proffered that Jones would testify "that Officer Jarmons did not arrest Mr. Highgate." Instead, Jones would say it "was the female officer who arrested Mr. Highgate and brought him into the house." Counsel underscored that he would not ask Jones "anything about his conduct." The court balked, however, declaring "that is not [of] sufficient materiality, in my opinion, to affect the jury's judgment in this case." The prosecutor, countering defense counsel's assurances, asserted his right to "ask [] Mr. Jones about his conduct out there ... to clarify this whole situation" before the jury.

With that, the court indicated that if Jones took the stand, "we're going to find out on the events surrounding ... May 8, 2004, that he would take the Fifth Amendment, that's the end of it, he's not going to testify to anything else, and I'll ask him." Although the court opined that Jones's "taking the Fifth isn't going to be good for the Defendant," it conceded that "if [defense counsel] want[s] to put him on there and say that, [he] can do it." Defense counsel persisted, expressing doubt about Jones's legitimate fear of self-incrimination:

It's my understanding from Mr. Jones that he already ... has been sentenced for things he did on that particular day, so I don't understand where the whole thing about self-incrimination is coming from. If he's been convicted of the criminal conduct he did that particular day, then I don't understand [how] he can incriminate himself.

The court agreed that it did not understand, but stated, "That's the wonderful thing about the Fifth Amendment. They don't have to do anything more than say they're taking it."

After the jury returned, the defense called Jones to the stand, and the court began, "It's my understanding ... that you would take the Fifth Amendment and not testify with regard to [the May 8] events until you had a chance to consult with a lawyer." Jones agreed and started to explain, but the court cut him off: "You don't have to explain why you don't want ... to take the Fifth. I'm asking you is that your position, that you won't testify until you've talked with a lawyer, that you will take the Fifth?" When Jones answered in the affirmative, the court excused him. The defense then rested without objecting further to Jones's dismissal, and the jury found Highgate guilty on all counts.

B

Before sentencing, the United States Probation Office prepared a Presentence Report ("PSR") identifying Highgate as a Career Offender with a Guidelines-recommended range of 360 months to life. Although neither party objected to the PSR's calculation, the district court twice adjourned the sentencing hearing. At the first adjournment, the district court expressed "the need to counsel with others and think about the heaviness of the sentence that seems to be commanded by the sentencing guidelines." The second adjournment notified the government that the court was considering granting a downward variance.

Although these delays held promise for a sentence below the applicable Guidelines range, the sentencing hearing did not culminate with a downward variance. Rather, the court decided to impose the Guidelines-minimum 360-month aggregate sentence instead of a sentence "more consistent with [the court's view of] justice, morality, and all of the other considerations under 3553."

II

In challenging his conviction, Highgate argues that the trial court deprived him of his Sixth Amendment right to compulsory process when it dismissed LaFrederick Jones without any inquiry into the legitimacy or scope of Jones's claimed Fifth Amendment privilege.

We first reject the government's contention that Highgate forfeited this issue by failing to raise it before the district court. See Fed.R.Crim.P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). True, Highgate's lawyer neither asked the court to delve into the basis for Jones's assertion nor objected when the court dismissed him. We held, however, in United States v. Gibbs, that a witness proffer sufficiently "br[ings] the issue of the scope of [the witness's] Fifth Amendment privilege to the attention of the district court." 182 F.3d 408, 431 (6th Cir.1999). Here, defense counsel explained how Jones's testimony would aid Highgate's case and also called the court's attention to Jones's state-court conviction, thus preserving the issue for appeal.

A defendant's right to compel testimony yields to a witness's assertion of his or her Fifth Amendment privilege when the claimed privilege is grounded on a reasonable fear of prosecution. United States v. Gaitan-Acevedo, 148 F.3d 577, 588 (6th Cir.1998); see also In re Morganroth, 718 F.2d 161, 167 (6th Cir.1983) ("Before a witness ... is entitled to remain silent, there must be a valid assertion of the [F]ifth [A]mendment privilege."). In this balancing of interests, the trial court must decide "whether a witness' silence is justified and ... require him to answer if it clearly appears to the court that the witness asserting the privilege is mistaken as to its validity." In re Morganroth, 718 F.2d at 167. We have clarified that "[a] blanket assertion of the privilege is not sufficient to meet the reasonable cause requirement and the privilege cannot be claimed in advance of the questions." Id. Highgate thus invokes this circuit's general rule that a subpoenaed witness must take the stand and assert the privilege in response to particular questions.

Although a district court errs by accepting a blanket assertion without requiring the witness to take the stand, Gibbs, 182 F.3d at 431, we also recognize that, as a practical matter, when the witness takes the stand and "it is clear that the witness intends to invoke the privilege with respect to any question asked, `a particularized inquiry by the court would [be] futile,'" id. (quoting United States v. Medina, 992 F.2d 573, 587 (6th Cir.1993)). That said, and notwithstanding the trial court's discretion to determine whether the blanket assertion has merit, the court must, after all, actually "decide whether a witness' silence is justified." United States v. Boothe, 335 F.3d 522, 526 (6th Cir.2003) (emphasis added and internal quotation marks omitted).

In this case, Jones took the stand and made a blanket assertion of his privilege, and the court credited that assertion without further probing. The court did not question if or why Jones feared prosecution or whether such a belief was reasonable. See JA 228 ("You don't have to explain why ... you want to take the Fifth."). Rather, the court only confirmed that Jones would not answer any questions before consulting a lawyer. When defense counsel questioned Jones's fear of self-incrimination in light of Jones's having been sentenced already for his participation, the court conceded that it did not understand Jones's fear but said, "[T]hat's the wonderful thing about the Fifth Amendment. ...