U.S. v. Mitchell, 88-5054

• Decision Date: 26 September 1989
• Docket Number: No. 88-5054,88-5054
• Citation: 886 F.2d 667
• Parties: 28 Fed. R. Evid. Serv. 1015 UNITED STATES of America, Plaintiff-Appellee, v. Clarence M. MITCHELL, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 667

886 F.2d 667

28 Fed. R. Evid. Serv. 1015

UNITED STATES of America, Plaintiff-Appellee, v. Clarence M. MITCHELL, III, Defendant-Appellant.

No. 88-5054.

United States Court of Appeals, Fourth Circuit.

Argued May 8, 1989.

Decided Sept. 26, 1989.

William Moses Kunstler, New York City, Blaine A'mmon White (Lee & Harvey, Edward Smith, Jr., Cummings & Smith, P.A., Baltimore, Md., on brief), for defendant-appellant.

Gary Patrick Jordan, First Asst. U.S. Atty., Bel Air, Md. (Breckinridge L. Willcox, U.S. Atty, Washington, D.C., Max H. Lauten, Asst. U.S. Atty., Baltimore, Md., on brief), for plaintiff-appellee.

Before WINTER, PHILLIPS, and MURNAGHAN, Circuit Judges.

HARRISON L. WINTER, Circuit Judge:

Defendant Clarence M. Mitchell, III, appeals his convictions for conspiring to obstruct a grand jury investigation in violation of 18 U.S.C. Sec. 371 and endeavoring to obstruct a grand jury investigation in violation of 18 U.S.C. Sec. 1503. Although Mitchell contends that the district court made a number of errors requiring reversal, we do not find his arguments persuasive. We affirm.

I.

In May, 1985, Mitchell was called to testify before a grand jury investigating possible tax evasion and drug trafficking by Melvin D. Williams, a Baltimore resident suspected of leading a major narcotics organization. In a search of Williams' home, government agents had found a document, dated October 4, 1983, which memorialized an agreement between Mitchell's realty firm, Mitchell Properties, Inc. (Mitchell Properties), and Williams' company, Scrapp Investment Co., Inc. (Scrapp). Under the terms of the agreement, Mitchell Properties was to attempt to obtain financing for Scrapp so that Scrapp could rehabilitate an apartment building located in Baltimore City. The document indicated that Mitchell Properties had received $50,000 from Scrapp as a retainer, and was signed by Mitchell and Scrapp's president, James Rogers.

In testimony before the grand jury, Mitchell asserted that he had received only $5,000 from Rogers. Appearing before the grand jury after Mitchell, Rogers testified that on October 4 he had personally given Mitchell a bag containing $50,000 in cash. An investigation of Mitchell Properties' financial records revealed deposits on that date in the amount of $15,000 in cash. To explain these deposits, Mitchell produced documents purporting to record a $15,000 loan he had obtained from a businessman, Jerry L. Hill.

At Mitchell's trial, Hill testified that the documentation of the $15,000 loan was spurious. He stated that, upon Mitchell's request, he had drawn up sham loan documents to enable Mitchell to explain the deposits of October 4 to the grand jury. These documents included backdated promissory notes and a memorandum listing, among others, a bogus loan for $15,000 from Hill to Mitchell. Hill testified that Mitchell believed these documents would be credible since Hill routinely dealt with large amounts of cash in the operation of certain service stations he owned.

The jury found Mitchell guilty of one count of conspiring to obstruct a grand jury investigation and one count of endeavoring to obstruct a grand jury investigation. This appeal followed.

II.

Mitchell asserts five separate grounds for reversal in this appeal. We address them seriatim.

A. Immunity for Defense Witness Melvin Williams

Mitchell's first contention is that the district court should have granted his request for immunity for defense witness Melvin Williams, who invoked his fifth amendment privilege against self-incrimination and refused to testify at trial. Mitchell contends that Williams was present at the October 4 meeting between Rogers and Mitchell, and that, had the government granted him immunity, Williams would have corroborated Mitchell's story by testifying that Rogers gave Mitchell only $5,000. At trial, the government refused to grant Williams immunity on the ground that he was under investigation for alleged drug trafficking.

The parties agree that our decision in United States v. Gravely, 840 F.2d 1156 (4 Cir.1988), is controlling on this point. In Gravely, we announced that while "[t]he decision of whether to grant immunity is in general vested with the prosecution," the rule in this circuit "is that the prosecution will be required to confer immunity when (1) the defendant makes a decisive showing of prosecutorial misconduct or overreaching and (2) the evidence supplied would be clearly material, exculpatory and unavailable from any other source." Id. at 1160. Accord United States v. Pinto, 850 F.2d 927, 935 (2 Cir.), cert. denied sub nom. Vence v. United States, --- U.S. ----, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988) and Castano v. United States, --- U.S. ----, 109 S.Ct. 323, 102 L.Ed.2d 341 (1988). We also cautioned that a "defendant bears a heavy burden when seeking to have the district court compel the grant of immunity." Gravely, 840 F.2d at 1160.

Mitchell fails to meet Gravely,'s first requirement. The government refused to grant immunity to Williams because he was the subject of a criminal investigation, and we do not think that this amounted to "prosecutorial misconduct or overreaching." Cf. United States v. Todaro, 744 F.2d 5, 9 (2 Cir.1984) (" '[t]rial judges should summarily reject claims for defense witness immunity whenever the witness for whom immunity is sought is an actual or potential target of prosecution' ") (quoting United States v. Turkish, 623 F.2d 769, 778 (2 Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 800 (1981)), cert. denied, 469 U.S. 1213, 105 S.Ct. 1186, 84 L.Ed.2d 333 (1985). Accordingly, we hold that the district court did not err in refusing to compel immunity for Williams.

B. Impeachment of Prosecution Witness Jerry Hill

Mitchell's second contention is that the district court impermissibly prevented him from introducing evidence to impeach the motives of prosecution witness Jerry Hill. Specifically, he argues that the district court should have allowed him to introduce the testimony of Baltimore City police officer Charles Carter concerning the department's investigation of suspected drug trafficking by Hill in 1985 and 1986. Mitchell asserts that Officer Carter's testimony would have tended to show that the department abandoned the investigation in exchange for Hill's cooperation in the Mitchell prosecution. At trial, Hill stated that the government had offered him immunity with respect to the bogus loan documents he had prepared, but denied that it had made any promises with respect to other criminal charges.

It has been settled for some time that due process requires a defendant be given the opportunity to present evidence concerning any promises, understandings or agreements between the government and a key prosecution witness relating to the witness' testimony. See Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); Wise v. Warden, Maryland Penitentiary, 839 F.2d 1030, 1033 (4 Cir.1988); Joyner v. King, 786 F.2d 1317, 1319 (5 Cir.), cert. denied sub nom. Joyner v. Phelps, 479 U.S. 1010, 107 S.Ct. 653, 93 L.Ed.2d 708 (1986). This is so even if the government's promise of leniency is imprecise or tentative. See DuBose v. Lefevre, 619 F.2d 973, 979 (2 Cir.1980); Campbell v. Reed, 594 F.2d 4, 7-8 (4 Cir.1979). In this case, however, the evidence Mitchell seeks to introduce simply does not reflect a "deal," precise or imprecise, between the government and Hill with respect to possible drug trafficking charges. At an in camera hearing before the district court, Officer Carter testified that the police had abandoned their investigation of Hill because they had "found no evidence that ... he was involved in [drug] distribution." We do not think it possible to draw from Officer Carter's testimony the inference that the authorities dropped the investigation of Hill in exchange for his cooperation at Mitchell's trial, and we therefore conclude that the district court did not err in refusing to admit it.

C. Impeachment of Defendant Clarence Mitchell

At trial, Mitchell elected to testify in his own defense. Pursuant to Fed.R.Evid. 609, the district court allowed the government to impeach him on cross-examination with evidence of his prior federal convictions for endeavoring to obstruct a congressional inquiry and for wire fraud. Mitchell contends that the district court erred in permitting cross-examination on these matters because he had not yet been sentenced on the earlier convictions and because the time for appealing those convictions had not yet run. ¹

We disagree. Although Mitchell had not yet been sentenced on his earlier convictions at the time of cross-examination in this case, the district court had denied Mitchell's post-trial motions. As we held in United States v. Duncan, 598 F.2d 839, 864 (4 Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979), a court's acceptance of a jury's verdict is "a sufficient predicate for the use of the 'verdict' for impeachment" in a subsequent trial. See also United States v. Smith, 623 F.2d 627, 630-31 (9 Cir.1980); United States v. Vanderbosch, 610 F.2d 95, 97 (2 Cir.1979); 3 Weinstein & Berger, Weinstein's Evidence p 609, at 609-126 & n. 8 (1988). With respect to Mitchell's argument concerning the possibility of an appeal, the short answer is that Rule 609(e) expressly provides that "[t]he pendency of an appeal therefrom does not render evidence of a conviction inadmissible." We therefore hold that the district court did not err in permitting use of Mitchell's prior convictions for impeachment purposes.

D. Recusal of Judge Ramsey

Mitchell's next contention is that the district judge should have recused himself because his impartiality in this case could reasonably have been questioned. Mitchell asserts that Judge Ramsey's impartiality could reasonably have been questioned because he denied Mitchell's motion to postpone trial so that Mitchell could assemble evidence...