U.S. v. Simmons

• Decision Date: 05 March 1982
• Docket Number: No. 81-1319,81-1319
• Citation: 670 F.2d 365,216 U.S. App. D.C. 207
• Parties: UNITED STATES of America v. David L. SIMMONS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 365

670 F.2d 365

216 U.S.App.D.C. 207

UNITED STATES of America v. David L. SIMMONS, Appellant.

No. 81-1319.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 25, 1981.

Decided Feb. 9, 1982.

As Amended March 5, 1982.

Appeal from the United States District Court for the District of Columbia (Criminal No. 80-00504).

A. Franklin Burgess, Jr., Washington, D. C., with whom William J. Mertens, Washington, D. C., was on the brief, for appellant.

Frederick D. Baron, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry, Michael W. Farrell and William J. O'Malley, Jr., Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before MacKINNON, ROBB and EDWARDS, Circuit Judges.

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

PER CURIAM.

Simmons was convicted on two drug counts: (1) Unlawful distribution of a controlled substance, and (2) unlawful possession of a controlled substance with intent to distribute (21 U.S.C. § 841(a)). Concurrent sentences were adjudged on each count of ten years imprisonment, with a special parole term of six years. His two accomplices only violated the distribution statute and they entered guilty pleas to that charge. Simmons' conviction for unlawful possession with intent to distribute was based upon the presence of 4,567 milligrams of heroin in the car he was driving. Simmons contends he was denied his due process right to call a witness in his defense by the threats of the prosecutor to a witness-i.e., one of the co-defendants. Since the facts upon which Simmons bases his due process claim have never been fully developed we remand the record for a hearing.

I.

The only issue on appeal is Simmons' claim that the prosecutor threatened one of his co-defendants Oscie Johnson, that such threats caused Johnson not to testify in Simmons' behalf, and that since such threats turned Johnson into an unwilling witness who refused to testify (when called he claimed self-incrimination and refused to testify) this court must reverse regardless of its assessment of prejudice.

The principal difficulty with appellant's contention is that to find any factual support for it requires us to resort to the most extreme speculation from scanty facts in the record. The claim was only raised cursorily by trial counsel at trial, and as presented at that time, it seemed to the court, and was apparently advanced by counsel, only as a claim that the prosecutor was prohibited from talking to "my" witness. When defense counsel was told that all witnesses were available to all parties he then dropped his objection. The issue presently urged was never subsequently presented to the trial court in the form of a motion for new trial. On this appeal new counsel attempt to present an entirely different picture. Thus, this court is now asked to rule on the basis of speculation and innuendo, and to assume that the prosecutor acting from illegal motives threatened the witness to prevent him from testifying. We refuse to reach this conclusion on the very limited record before us. In our view the charge calls for a full hearing in the first instance before the trial judge.

At such hearing the prosecutor, the co-defendant Oscie Johnson, his attorney Mr. Canan, another co-defendant Mr. Willie Munlyn, the defendant and his lawyer, the undercover agent posing as the desk clerk, and the other police officers (Tr. 49) who were present when the prosecutor talked with Johnson at various times, and other relevant witnesses can all be thoroughly examined and cross-examined. The record also indicates that there are tape recordings of some of the relevant testimony, and these can be closely examined and checked against witness statements. Johnson and Munlyn's Fifth Amendment rights with respect to the instant offenses have expired and their testimony should clear up several vital points. The court can thus determine whether Johnson was being asked to commit perjury.

At the present time the only record evidence that bears on the issue is the following:

MR. ABBENANTE: (Counsel for Simmons): Your Honor, one brief thing before we call in the Jury: Yesterday I informed Mr. O'Malley after we had some preliminary discussion you may recall about whether or not Mr. Johnson was going to testify or was not going to testify-I had spoken with Mr. Johnson and indicated Mr. Johnson-through Mr. Johnson-he was going to testify.

I informed Mr. O'Malley that he was going to be testifying for the defense.

I found out this morning through a member of his family who was so upset that they came to court today, that Mr. O'Malley brought up Mr. Johnson to his office with-not in the presence of his attorney-yesterday afternoon some time, brought him up from the jail and it's characterized by his sister as being-badgered Mr. Johnson. Now Mr. O'Malley has consistently from the beginning of this case tried to enlist the cooperation of Mr. Johnson-met with Mr. Johnson several times and-

THE COURT: That is his privileged. (sic).

MR. ABBENANTE: Your Honor, my position is that he's in a sense intimidating one of my witnesses prior-

THE COURT: I can't rule on that. I don't know what he has done or said. As long as he doesn't violate Mr. Johnson's Fifth Amendment rights that is his privilege and I don't know that there is very much I can do about it. I can caution him-

MR. ABBENANTE: Well I can say-

THE COURT: -but witnesses are available to all parties if they want to testify.

MR. ABBENANTE: All right-thank you, Your Honor.

MR. O'MALLEY: May I say a word, Your Honor?

THE COURT: All right.

MR. O'MALLEY: It is a fact that witnesses are available to all parties-based on the fact that Mr. Abbenante told me that Mr. Johnson was going to testify that is why I had Mr. Johnson visit my Chambers. In fact Mr. Johnson at one time was going to testify against Mr. Simmons and had told me one story, and having heard that story, it was inconceivable to me that he would now testify for Mr. Simmons.

When Mr. Johnson came to my office his attorney wasn't there and (I) couldn't get in touch with his attorney so I made a telephone call to attempt to do so, but since his attorney wasn't there I told him not to say anything and I started to warn him about the penalties for perjury at which point Mr. Johnson-I in no way badgered Mr. Johnson -at which point Mr. Johnson lost control of himself and started screaming and hollering at which point he was removed from my office and went back downstairs.

That is the complete extent of my conversation with him.

THE COURT: Well the only caution I can give you is to be sure you don't violate the Fifth Amendment privilege.

MR. O'MALLEY: Well he was advised, Your Honor, in his conversation with me prior to yesterday that anything he said would not be used against him unless he agreed to testify or unless he did testify and perjured himself.

THE COURT: Well I think we know the rule-all witnesses are available to all parties. Nobody has a latch on witnesses.

(Tr. 1/27/81, 34-37). Later in the trial Johnson appeared in court and the following colloquy took place:

MR. ABBENANTE: Your Honor, Mr. Canan arrived. He is attorney for Mr. Johnson. Do you want to speak to him?

THE COURT: Yes.

(Mr. Canan comes forward.)

THE COURT: Good morning, Mr. Canan. Your man Johnson is back in the cell-block and there is some question whether he should or should not testify. Would you give him a good piece of advice so we can proceed promptly at 1:15?

MR. CANAN: Very well.

THE COURT: Thank you very much.

(Recessed for lunch at 11:35 a.m.)

AFTERNOON SESSION-1:15 P.M.

THE COURT: Mr. Canan.

MR. CANAN: I would appreciate having my client out and I would do this in his presence, Your Honor.

(Defendant Oscie Johnson was brought in from the cellblock.)

MR. CANAN: Your Honor, at this point I have advised Mr. Johnson that he still has a Fifth Amendment right and privileges under the Constitution, that he cannot be compelled to testify. I have advised him of that, and I have advised him not to take the witness stand in this case. He is presently pending sentence before Your Honor and he agrees whole heartedly with my advice.

I further advised him that he should not discuss this case with either the defense or prosecution, if either defense or prosecution talked to him, they should contact me first.

THE COURT: All right. Mr. Johnson, you have been well advised. I take it you don't want to testify?

DEFENDANT JOHNSON: That is right.

THE COURT: Very well.

(Tr. 1/28/81, 47-48).

II.

The right of a defendant to establish a defense by presenting his own witnesses is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1979). Two significant cases discuss this issue. First, Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), reversed a conviction for burglary for improper intervention of the trial judge. In that case, without any basis for concluding that a defense witness (a prisoner) might testify falsely, the judge on his own initiative, before a defense witness testified, admonished him in a lengthy warning as to his Fifth Amendment rights and the dire eventualities that might and "would" result if he took the stand and testified falsely:

If you take the witness stand and lie under oath, the Court will personally see that your case goes to the grand jury and you will be indicted for perjury and the liklihood (sic) is that you would get convicted of perjury and that it would be stacked onto what you have already got, so that is the matter you have got to make up your mind on. If you get on the witness stand and lie, it is probably going to mean several years and at least more time that you are going to have to serve. It will also be held against you in the penitentiary when you're up for parole and the Court wants you to thoroughly understand the chances...