U.S. v. Lord

• Decision Date: 26 July 1983
• Docket Number: No. 82-1347,82-1347
• Citation: 711 F.2d 887
• Parties: 13 Fed. R. Evid. Serv. 1544 UNITED STATES of America, Plaintiff-Appellee, v. David LORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 887

711 F.2d 887

13 Fed. R. Evid. Serv. 1544

UNITED STATES of America, Plaintiff-Appellee, v. David LORD, Defendant-Appellant.

No. 82-1347.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 5, 1983.

Decided July 26, 1983.

Jerry Diskin, Asst. U.S. Atty., Tacoma, Wash., for plaintiff-appellee.

Katrina Pflaumer, Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, and FLETCHER and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

A jury convicted appellant David Lord on two counts of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(1)(A), one count of conspiracy to distribute cocaine in violation of 21 U.S.C. § 841(a), and one count of carrying a concealed weapon in the commission of a felony in violation of 18 U.S.C. § 924(c). He was sentenced to five years in prison on each count, the sentences to run concurrently.

On appeal Lord argues that (1) the district court erred in failing to determine whether the prosecution caused a key defense witness to refuse to testify; (2) the district court erroneously struck the entire testimony of another defense witness after she invoked the fifth amendment privilege against self-incrimination; (3) the district court erroneously excluded expert psychiatric testimony; and (4) the district court committed reversible error when it made certain evidentiary rulings and gave certain jury instructions.

With regard to Lord's first argument, we hold that the district court erred in failing to determine whether the prosecution caused an important defense witness to refuse to testify. Therefore, we vacate the conviction and remand the case for an evidentiary hearing on this issue. We need address Lord's other arguments only briefly.

FACTS

At the time of the events underlying his conviction, Lord resided in rural Kitsap County in Washington. Lord had returned to Kitsap County from the Vietnam war, where he suffered leg injuries and allegedly was exposed to Agent Orange. He also suffers from histoplasmosis, which has caused a loss of sight in his right eye. In late 1981, Lord experienced some loss of sight in his left eye. He then took what he understood to be a temporary leave from his job. One week later, he received a severance notice from his employer.

The government and Lord dispute the events preceding the drug transaction underlying his convictions. Lord contends that he met Joe Spaulding, a Drug Enforcement Administration (DEA) informer, in December 1981 and that Spaulding solicited cocaine from him and others. Spaulding testified that he first met Lord in early January 1982 when Joe Cook, an acquaintance of Lord's, introduced Lord as a drug dealer. According to Spaulding, Lord made the first overture for the cocaine sale.

Lord admitted that he and Cook delivered to Spaulding one-half gram of cocaine on January 7, 1982. Lord contends, however, that after this delivery Spaulding and DEA agents, posing as "Mafia connections," threatened Lord and Cook with harm unless they could deliver much more cocaine. Lord testified at trial that in the following two weeks Spaulding telephoned many times to pressure him to deliver more cocaine. On January 21, after obtaining a large quantity of cocaine from Michael Romero, Lord arranged another meeting with Spaulding and a DEA agent posing as Spaulding's financier. At that meeting, later the same day, Lord and Romero were arrested and searched. DEA agents found a .25-caliber automatic pistol and small quantities of marijuana, LSD, and cocaine on Lord. Approximately ten ounces of cocaine were discovered in Lord's car.

Lord's principal defense at trial was entrapment. Romero pled guilty and testified against Lord but acknowledged that Lord seemed to be under much pressure in the transaction. Lord attempted to call an expert psychiatrist to establish Lord's unusual susceptibility to entrapment. The psychiatrist would have testified that Lord's illnesses, his unemployment, and his experiences in Vietnam lowered his ability to resist pressure to consummate the drug sale. The district court excluded the psychiatric testimony under Fed.R.Evid. § 403.

Two of Lord's witnesses exercised their fifth amendment privilege against self-incrimination. The first was Robyn Ogden, a waitress at a bar that Spaulding frequented. Ogden testified on direct examination that Spaulding very often badgered people for drugs and that he had a poor reputation in the community. During cross-examination, the prosecutor asked Ogden to name the people whom she had introduced as cocaine suppliers to Spaulding. She refused and invoked her fifth amendment privilege. As a consequence, the district court struck Ogden's entire testimony.

Lord's counsel also called Cook to the stand outside the presence of the jury to determine whether Cook was willing to testify about the drug transactions. Cook indicated that he had discussed his potential criminal liability with the prosecutor and said, "He told me that my part in this was so minor that he really didn't want to prosecute me, but he would, depending on my testimony."

Following defense counsel's request for clarification, the prosecutor asked Cook, "Do you remember being advised that while you might incriminate yourself in your testimony, that I wasn't interested in prosecuting you if you were truthful, if you would submit to an interview, if you would testify fully and truthfully, do you remember that?" Cook replied, "Not in those words exactly, no." Defense counsel requested that the court interpret the prosecutor's remarks to Cook as a grant of immunity and require Cook to testify despite his claim of privilege. The district court refused to do so, and Cook testified no further. The jury convicted Lord on all counts.

ANALYSIS

1. Defense Witness Immunity

Under 18 U.S.C. §§ 6002-6003, the prosecutor may secure immunity for a witness whose testimony "may be necessary to the public interest." ¹ An immunized witness Section 6003, which authorizes prosecutors to request an order granting use immunity, is generally employed only for government witnesses. However, in recent years courts have recognized that, under certain circumstances, such as where the refusal to testify is occasioned by prosecutorial misconduct, use immunity for defense witnesses is necessary to protect and enforce a defendant's due process right to a fair trial. See generally Comment, Defense Witness Immunity and the Right to a Fair Trial, 129 U.Pa.L.Rev. 377 (1980).

                may not refuse to answer by asserting the fifth amendment privilege against self-incrimination.   This immunity is referred to as "use immunity."   See, e.g., Weg v. United States, 450 F.2d 340, 341 (9th Cir.1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2057, 32 L.Ed.2d 349 (1972).   Use immunity means that, while the government may prosecute the witness for an offense related to the subject matter of the witness's testimony, the testimony itself and any "fruits" thereof may not be used against the witness in any criminal case except a prosecution for perjury arising out of the testimony.   See, e.g., New Jersey v. Portash, 440 U.S. 450, 451-52, 99 S.Ct. 1292, 1293-94, 59 L.Ed.2d 501 (1979)
                

The Third Circuit has developed a rule for granting defense witnesses use immunity when required by due process. The rule emerged in United States v. Morrison, 535 F.2d 223 (3d Cir.1976). In Morrison the defendant's girl friend planned to testify that she, rather than the defendant, had participated in a conspiracy to sell hashish. Originally the girl friend was indicted with the defendant, but charges were dropped because she was a juvenile at the time of the alleged offense. After the prosecutor learned of the girl friend's intention to testify, he warned her repeatedly that she could be prosecuted for the drug charges and for perjury if she testified for the defendant. The Third Circuit held that the prosecutor's intimidation of the witness, designed to induce her to assert the fifth amendment privilege against self-incrimination, violated the defendant's right to compulsory process and, hence, the defendant's right to due process. Id. at 228. The court ordered a new trial and indicated that, if the government did not request use immunity for the defense witness pursuant to 18 U.S.C. §§ 6002 & 6003, a judgment of acquittal should be entered. Id. at 229.

In United States v. Herman, 589 F.2d 1191 (3d Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), the Third Circuit enunciated the showing required to justify compelling the government to grant use immunity to a defense witness or suffer judgment of acquittal. It held that "[t]he defendant must be prepared to show that the government's decisions were made with the deliberate intention of distorting the judicial fact finding process." Id. at 1204.

The Herman court did not order immunity because no evidence of prosecutorial misconduct appeared there. The first application of the Herman standard occurred in Virgin Islands v. Smith, 615 F.2d 964 (3d Cir.1980). In Smith the court determined that the record revealed a prima facie showing of prosecutorial misconduct. There the local juvenile authorities had exclusive jurisdiction over an essential defense witness. Although the local authorities agreed to immunize the witnesses, they made the offer of immunity contingent on the consent of the United States Attorney, the official entrusted with statutory authority to make such a grant. For reasons Upon reviewing the record in the instant case, we conclude that Lord has made a prima facie showing of the relevance of Joe Cook's testimony. Cook, if allowed to testify, might corroborate Lord's version of when he met Spaulding and who made the first overture for the sale of drugs. Cook also might testify that Spaulding and DEA agents harassed and threatened Lord in order to...