U.S. v. Lyons

• Decision Date: 14 April 1983
• Docket Number: No. 82-1325,82-1325
• Citation: 703 F.2d 815
• Parties: 13 Fed. R. Evid. Serv. 33 UNITED STATES of America, Plaintiff-Appellee, v. Arvey Hawy LYONS and Vickie Elaine Lyons, a/k/a Vickie Colbert, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 815

703 F.2d 815

13 Fed. R. Evid. Serv. 33

UNITED STATES of America, Plaintiff-Appellee, v. Arvey Hawy LYONS and Vickie Elaine Lyons, a/k/a Vickie Colbert, Defendants-Appellants.

No. 82-1325.

United States Court of Appeals Fifth Circuit.

April 14, 1983.

Melvyn Carson Bruder, Dallas, Tex., for defendants-appellants.

John Mitchell Nevins, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, GARZA and WILLIAMS, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A husband and wife, convicted of conspiracy and interstate transportation of stolen goods, claim they were denied their sixth amendment rights of confrontation and cross-examination because a government witness invoked the privilege against self-incrimination after a brief direct examination. They also assert various trial errors. Finding none of the claims to have merit, we affirm.

Arvey Hawy Lyons and his wife, Vickie Elaine Lyons, were convicted of violating 18 U.S.C. Sec. 371 (1976), by conspiring to violate federal statutes prohibiting the interstate transportation of stolen goods, id. Sec. 2314 (1976), and the receipt of such goods, id. Sec. 2315 (1976). Mr. Lyons alone was convicted of committing the substantive offense of transporting stolen goods in interstate commerce under Sec. 2314.

Viewed in the light most favorable to the government, ¹ the evidence at trial demonstrated that the Lyons organized an elaborate interstate burglary scheme. Two accomplices, Woolridge and Joseph, were recruited in Los Angeles. Ms. Lyons drove them to the airport and, with cash, purchased tickets for their travel to Dallas. She remained in Los Angeles.

On arriving in Dallas, Woolridge and Joseph were met by Mr. Lyons, Jacqueline Cook, and a man named Steve. The five burglarized several Dallas clothing stores. The stolen goods were packaged, and Mr. Lyons shipped them, air freight, to Carol Jenkins in Los Angeles. Mr. and Ms. Lyons later picked up these packages at the Los Angeles airport.

I.

Jacqueline Cook participated in the Dallas burglaries. She was interviewed before the Lyons' trial by an assistant United States attorney. He knew that, because of her relationship with the Lyons, she did not wish to testify. He also knew that Ms. Cook had pleaded guilty to related state charges and thought, erroneously, that she had thereby waived her fifth amendment privilege against self-incrimination with respect to these events. ² Without informing Ms. Cook of her right not to incriminate herself or obtaining any assurance that she would waive this right, the attorney called her as the government's last witness.

Ms. Cook had been identified in earlier testimony as a participant in the Dallas burglaries. She testified that shortly before the burglaries she met with the Lyons in Los Angeles. The meeting took place in the Lyons' yellow Cadillac and was for the purpose, she testified, of discussing business "pertaining to some burglaries." At this point, the district judge stopped the questioning. After excusing the jury for lunch, the judge advised Cook of her privilege against self-incrimination. She stated that she did not want to testify. She also responded affirmatively to the judge's suggestion that she discuss the matter with counsel. After consultation with her newly appointed attorney, Ms. Cook invoked the fifth amendment.

Ms. Cook's attorney moved to strike her direct testimony and to prevent her from being called to the stand for cross-examination. The defendants moved for a mistrial. The judge denied the defendant's motion. He recalled the jury but did not reveal the fact that Ms. Cook had asserted her fifth amendment rights. He stated simply "I have determined that the lady should not testify...." He then gave the jury an emphatic instruction to disregard Ms. Cook's testimony. The Lyons now claim the judge's instruction failed to protect their sixth amendment rights adequately.

"There are few subjects, perhaps, upon which [federal courts] have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 927 (1965). For this reason, the sixth amendment guarantees the accused in a criminal prosecution the right to cross-examine the witnesses against him. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347, 353 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934, 937 (1965); Truman v. Wainwright, 514 F.2d 150, 151 (5th Cir.1975).

The trial court also has a duty, however, to protect the fifth amendment rights of witnesses. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931); United States v. Demchak, 545 F.2d 1029, 1031 (5th Cir.1977). The judge necessarily is accorded broad discretion in determining the merits of a claimed privilege and the measures to be taken as a result of a valid fifth amendment claim. See United States v. Fricke, 684 F.2d 1126, 1132 (5th Cir.1982) cert. denied, --- U.S. ----, 103 S.Ct. 1250, 74 L.Ed.2d --- (1983); United States v. Melchor Moreno, 536 F.2d 1042, 1050 (5th Cir.1976). And if the judge sustains a witness' assertion of the privilege, the defendant has no right to call the witness to the stand merely to force invocation of that right before the jury. See Fricke, 684 F.2d at 1131 n. 7; Melchor Moreno, 536 F.2d at 1046 n. 4; United States v. Gomez-Rojas, 507 F.2d 1213, 1220 (5th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975); United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.), cert. denied, 419 U.S. 1053, 95 S.Ct. 631, 42 L.Ed.2d 648 (1974).

When a prosecution witness invokes the fifth amendment after testifying on direct examination, the privilege against self-incrimination conflicts with the defendant's sixth amendment confrontation rights. The defendant is deprived of his right to inquire into the witness' credibility through cross-examination. If this impediment to cross-examination creates a "substantial danger of prejudice by depriving [the defendant] of the ability to test the truth of the witness's direct testimony," relief is warranted. United States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); accord United States v. Phillips, 664 F.2d 971, 1027-28 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982).

Ordinarily, the appropriate relief in such a case is for the trial judge to strike the direct testimony of the witness. See Phillips, 664 F.2d at 1027-28; Diecidue, 603 F.2d at 552; Fountain v. United States, 384 F.2d 624, 628 (5th Cir.1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1246, 20 L.Ed.2d 105 (1968). If the direct testimony is especially prejudicial, however, as it may be when the witness bears a special relationship to the defendant, we have held this remedy inadequate. On the premise that the jury could not follow the instruction to disregard the witness' testimony, we have then required a mistrial. See United States v. Ritz, 548 F.2d 510 (5th Cir.1977) (privilege invoked by witness who was spouse of one defendant and father of others); United States v. Demchak, 545 F.2d 1029 (5th Cir.1977) (father of defendant invoked privilege); San Fratello v. United States, 340 F.2d 560 (5th Cir.1965) (wife of defendant invoked privilege).

The government agrees that Cook's invocation of the privilege against self-incrimination prevented the Lyons from testing the truth of her direct testimony. Thus, it is undisputed that some form of relief was appropriate. The real issue, then, is whether the district judge properly concluded that the Lyons' sixth amendment rights were protected by striking Cook's testimony, or whether a mistrial was required.

We conclude that a mistrial was unnecessary. The general rule in this circuit is that "[a]n instruction to disregard ... is sufficient, unless the remark is so prejudicial that it is incurable by the court's admonition." United States v. Irwin, 661 F.2d 1063, 1071 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1754, 72 L.Ed.2d 164 (1982); United States v. Contreras, 602 F.2d 1237, 1241 (5th Cir.) (per curiam), cert. denied, 444 U.S. 971, 100 S.Ct. 466, 62 L.Ed.2d 387 (1979); United States v. Carrillo, 565 F.2d 1323, 1326 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978).

Ms. Cook's testimony was short and primarily cumulative to previously admitted evidence. The jury had already heard Woolridge say that Ms. Cook was involved in the burglary conspiracy, having directly participated in the breaking and entering of the Dallas stores. The testimony had also directly implicated Mr. Lyons in those burglaries. Hence, his connection with Ms. Cook was established even before her appearance. As discussed infra, Ms. Lyons was charged with, and the evidence proved her participation in, this same conspiracy. The one fact Ms. Cook specifically related, that the Lyons were in Los Angeles in October 1981 and had a yellow Cadillac Seville, was also testified to by Woolridge.

We conclude that the trial judge may not be faulted for not declaring a mistrial. Given the cumulative nature of Cook's testimony, he acted within his discretion in concluding that the jury could follow his emphatic instruction to disregard Cook's testimony. ³

II.

Mr. and Ms. Lyons were represented at trial by a single attorney. ⁴ The trial judge failed to hold a hearing pursuant to Fed.R.Crim.P. 44(c) to inquire whether any possible conflict of interest existed. ⁵

The trial court's failure to comply with Rule 44(c) does not, of itself, entitle the Lyons to relief. The inquiry and advice provided for by that rule are not...