U.S. v. Kimball, 93-3225
| Decision Date | 10 February 1994 |
| Docket Number | No. 93-3225,93-3225 |
| Citation | 15 F.3d 54 |
| Parties | 38 Fed. R. Evid. Serv. 1363 UNITED STATES of America, Plaintiff-Appellee, v. Lawrence KIMBALL, Defendant-Appellant. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Francis King, Asst. Federal Public Defender, John T. Mulvehill, Federal Public Defender, New Orleans, LA, for defendant-appellant.
Herbert W. Mondros, Michael Magner, Asst. U.S. Attys., Harry Rosenberg, U.S. Atty., New Orleans, LA, for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.
Lawrence J. Kimball appeals his conviction of possession of a firearm by a felon and the enhanced prison sentence imposed for that crime. Finding neither error nor abuse of discretion we affirm.
A jury found Kimball, a convicted felon, guilty of possessing a firearm. He received an enhanced sentence of 235 months imprisonment. His first trial ended in a mistrial. In the second trial, Kimball sought to elicit from the government's case agent a part of his testimony during the first trial, 1 a strategy which would have enabled the presentation of his earlier exculpatory testimony without any cross-examination leveler. The district court ruled that the case agent could not testify about Kimball's earlier exculpatory statements.
Before trial the government notified Kimball that it would seek imposition of penalty enhancements under 18 U.S.C. Sec. 924(e)(1) because of his prior convictions. Finding a previous conviction for aggravated battery and two independent convictions for cocaine distribution, the district court imposed a significantly enhanced sentence. Kimball timely appeals.
Kimball challenges the evidentiary ruling and the enhanced sentence. He first contends that the hearsay exceptions of the Federal Rules of Evidence allow introduction of a person's former testimony where that person is unavailable. 2 Kimball argues that he was unavailable as a witness because at the time of the district court's evidentiary ruling he had invoked his fifth amendment privilege against self-incrimination, a privilege that under our precedents constitutes unavailability under the Rules. 3 We review the district court's rejection of this argument for an abuse of discretion. 4
Kimball's argument is answered by the Rules. The sponsor of a declarant's former testimony may not create the condition of unavailability and then benefit therefrom. 5 The rule Kimball relies upon was designed to ensure one access to testimony where, by the actions of the opponent, or at least through no fault of the testimony's proponent, a desired witness becomes unavailable. In the instant case, Kimball created his own unavailability by invoking his fifth amendment privilege against self-incrimination. 6
While sensitive to the importance of not discouraging or prejudicing a defendant who invokes the fifth amendment, 7 we cannot accept the view proposed by Kimball. A defendant seeking to testify and make exculpatory statements must face cross-examination. 8 That is a basic rule of our adversary system. Kimball would change that. The district court did not abuse its discretion in its evidentiary ruling.
As to the assigned sentence enhancement error, Kimball insists that his two cocaine distribution convictions were not based upon distinct criminal acts. The controlling rubric provides that a convicted felon in possession of a firearm is subject to enhanced penalties if the person "has three previous convictions ... committed on occasions different from one another." 9
Kimball maintains that inasmuch as the cocaine distribution charges were brought at the same time, he had been convicted of only one crime before committing both his second and third offenses. Kimball suggests that this compels us to ignore one of his cocaine convictions for purposes of section 924(e)(1). He also argues that because the two charges involved incidents only days apart, the two convictions should be treated as part of a single crime "spree" and not as separate offenses committed on separate occasions. We are not persuaded.
As to the former argument, we have expressly rejected the proposition that multiple offenses should be counted as one conviction under section 924(e)(1) merely because they are prosecuted in the same judicial proceeding. 10 As to the latter, we have found that temporal proximity will not transform two crimes into one. 11 By our announced standard, Kimball had three extant convictions at the time of his arrest as a felon in possession of a firearm. He was sentenced legally.
AFFIRMED.
1 In the previous trial, Kimball had explained that he was only in possession of a firearm because immediately before the arrival of the police he had wrested the weapon from an unidentified person who had attempted to rob him at gunpoint.
2 Fed.R.Evid. 804(b)(1). This exception is subject to the condition that "the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination." Id.
3 See United States v. Young Bros., Inc., 728 F.2d 682 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984) ().
4 United States v. Capote-Capote, 946 F.2d 1100 (5th Cir.1991), cert. denied sub nom., Rodriguez v. United States, --- U.S. ----, 112 S.Ct. 2278, 119 L.Ed.2d 204 (1992).
5 "A declarant is not unavailable as a witness if [his] refusal ... is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying." Fed.R.Evid. 804(a)(5).
6 Although Kimball had invoked his fifth amendment privilege at the time of the evidentiary ruling, he nonetheless waived this right and testified at his second trial in even stronger terms than at his first. The presentation of his version of the facts was not adversely affected...
To continue reading
Request your trial
-
U.S. v. Bollin
...to testify at a second trial of his case is not entitled to introduce the testimony he gave at the first trial); United States v. Kimball, 15 F.3d 54, 55-56 (5th Cir. 1994) 2. Rule of Completeness The "rule of completeness" is found in Federal Rule of Evidence 106, which provides: When a wr......
-
People v. Sibadan
...statements not subject to cross-examination (see, United States v. Peterson, 100 F.3d 7, 13-14 [2d Cir.1996]; United States v. Kimball, 15 F.3d 54, 55-56 [5th Cir.1994], cert. denied 513 U.S. 999, 115 S.Ct. 507, 130 L.Ed.2d 415; see also, People v. Ely, 164 A.D.2d 442, 445-446, 563 N.Y.S.2d......
-
Wrice v. Byrne
...created his own unavailability by invoking his fifth amendment privilege against self-incrimination. Id. (quoting United States v. Kimball , 15 F.3d 54, 55–56 (5th Cir. 1994) ); see also McGahee v. Massey , 667 F.2d 1357, 1362 (11th Cir. 1982) ("A defendant cannot have it both ways. ... [He......
-
State v. King
...privilege, he has made himself unavailable to any other party, but he is not unavailable to himself.”). See also United States v. Kimball, 15 F.3d 54, 56 (5th Cir.1994) (holding that a declarant cannot cause his own unavailability by invoking his Fifth Amendment privilege against self-incri......
-
§ 34.02 Unavailability
...The law does not require the doing of a futile act."). See infra § 43.06 (discussing witness's privilege).[8] See United States v. Kimball, 15 F.3d 54, 55-56 (5th Cir. 1994). Accord United States v. Peterson, 100 F.3d 7, 13 (2d Cir. 1996); ("When the defendant invokes his Fifth Amendment pr......
-
§ 34.02 UNAVAILABILITY
...The law does not require the doing of a futile act."). See infra § 43.06 (discussing witness's privilege).[8] See United States v. Kimball, 15 F.3d 54, 55-56 (5th Cir. 1994). Accord United States v. Peterson, 100 F.3d 7, 13 (2d Cir. 1996); ("When the defendant invokes his Fifth Amendment pr......