U.S. v. Washington

• Decision Date: 11 February 2005
• Docket Number: No. 02-4653.,02-4653.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 306

398 F.3d 306

UNITED STATES of America, Plaintiff-Appellee, v. Robert WASHINGTON, Defendant-Appellant.

No. 02-4653.

United States Court of Appeals, Fourth Circuit.

Argued: November 30, 2004.

Decided: February 11, 2005.

ARGUED: Paul Samuel Rosenzweig, Washington, D.C., for Appellant. Michael Joseph Leotta, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Thomas M. DiBiagio, United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER, LUTTIG, and KING, Circuit Judges.

Affirmed in part, and remanded by published opinion. Judge KING wrote the opinion, in which Judge NIEMEYER and Judge LUTTIG joined.

OPINION

KING, Circuit Judge:

Robert Washington appeals his conviction and sentence in the District of Maryland for possession of a firearm by a convicted felon, in contravention of 18 U.S.C. § 922(g)(1). On appeal, Washington makes three contentions: (1) that the district court's failure to compel the Government to grant immunity to a potentially exculpatory defense witness denied him his constitutional right to a fair trial; (2) that the evidence was insufficient to support his conviction; and (3) that the court erroneously enhanced his sentence by two levels for subornation of his wife's perjured trial testimony. As explained below, we reject Washington's first two contentions. In light of the Supreme Court's recent decision in United States v. Booker, ___ U.S. ___, 125 S.ct 738, ___ L.Ed.2d ___ (2005), however, we vacate Washington's sentence and remand.

I.

On January 23, 2002, Washington was indicted by the federal grand jury in Maryland for possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). At trial in April 2002, Officer Todd Tugya of the Baltimore City Police Department testified that, on the evening of November 11, 2001, he responded to an assault at 620 North Robinson Street. There he met Joseph Gilmore, who had a cut under his eye and a swollen lip. Gilmore led Officer Tugya to a nearby residence at 3037 East Monument Street to point out the person who had hit him in the face. When Officer Tugya knocked on the door and identified himself as a police officer, a thickly built black male, wearing sweatpants, a knit cap that covered braids, and no shoes or shirt, opened the door while holding his left hand behind his back. After repeated requests from Officer Tugya for the person to step outside and "let me see your hands," the man dropped a black handgun to the floor from behind, which landed between his legs. He then ran from the house without being apprehended. Officer Tugya promptly recovered the firearm, a loaded 9 millimeter Ruger P89 semi-automatic pistol.

Two hours later, Officer Tugya identified Washington in a photo line-up as the man who had dropped the Ruger pistol and absconded from the house on East Monument Street, an identification he confirmed at trial. Detective Alexander Lee testified that, later on November 11, 2001, he obtained written permission from Washington's wife to search the residence at 3037 East Monument Street, and that he had seized a box from a second floor bedroom. The box had Washington's name on it, and it contained two loaded ammunition magazines that fit the Ruger pistol.

The parties stipulated at trial that Washington had been previously convicted of a felony, that his right to own or possess a firearm had not been restored, and that the firearm in question had travelled in interstate commerce. In his defense, Washington called only one witness, his wife Joyce, who denied that Washington was home on the evening of November 11, 2001. She testified that the individual who opened the front door for Officer Tugya was James Hill, with whom she was having an affair. On cross-examination, Mrs. Washington acknowledged that, although she had spoken to the police about her husband's arrest at least four times, she had never claimed that her husband was not at home that evening or that Hill was the man they sought.

Washington also sought to introduce into evidence the testimony of Gilmore (the assault victim) or, in the alternative, Gilmore's affidavit. Gilmore had executed an affidavit for Washington recanting his earlier written and tape-recorded statements to the police that identified Washington as the person who had assaulted him on November 11, 2001, and who possessed the firearm that evening. Gilmore's affidavit maintained that his prior statements were false and had been coerced by police officers who, among other improprieties, had denied him medical treatment for his injuries. Prior to Washington's trial, the Government advised the district court that Gilmore's testimony could subject him to obstruction of justice and perjury charges. The court then appointed counsel for Gilmore, who thereafter indicated that, if called to testify, Gilmore would invoke his Fifth Amendment privilege against self-incrimination.

Washington then requested the court to compel the Government to grant Gilmore immunity from prosecution, which the Government declined to do, in order to permit him to testify on Washington's behalf. The court denied Washington's motion, finding that the prosecution was not using its authority abusively in pointing out that Gilmore's testimony could result in an obstruction of justice or perjury charge. Indeed, according to the trial judge, "any responsible prosecutor" would have brought the witness's potential criminal exposure to the court's attention. On April 17, 2002, after a three-day trial, the jury convicted Washington of the § 922(g)(1) offense.

On August 5, 2003, the district court conducted Washington's sentencing hearing. In determining Washington's sentencing range, the court enhanced his offense level by two levels for obstruction of justice under § 3C1.1 of the Sentencing Guidelines, finding that Washington had suborned perjury when he called his wife to the stand. See U.S. Sentencing Guidelines Manual § 3C1.1.¹ In making its § 3C1.1 ruling, the court found that Joyce Washington's trial testimony was "clearly false" and "incredible," that her evidence went to a core issue in the trial, and that Washington knew the testimony to be false. The court concluded that Washington "proffered testimony from his wife, or he sat there while his wife testified to something which was simply factually not true." Finally, the court sentenced Washington to 120 months, the statutory maximum, to be followed by three years of supervised release.²

Washington has filed a timely notice of appeal, and he raises on appeal the contentions of error spelled out above.³ We possess jurisdiction pursuant to 28 U.S.C. § 1291, and we assess Washington's contentions in turn.

II.

A.

First, Washington contends that, under his Sixth Amendment right to call witnesses, the district court should have directed the Government to grant Gilmore immunity from prosecution, in order for his exculpatory evidence to be presented at trial.⁴ He maintains that the Government's assertion that Gilmore could be charged with perjury or obstruction of justice forced him to assert his Fifth Amendment privilege, constituting prosecutorial overreaching. Such a contention presents a mixed question of law and fact, and we review a district court's factual findings for clear error and its legal determinations de novo. See United States v. Ellis, 121 F.3d 908, 927 (4th Cir.1997) (observing that review of district court's determination of prosecutorial misconduct is mixed question of law and fact); see also United States v. Ramos-Oseguera, 120 F.3d 1028, 1037 (9th Cir.1997) (reviewing district court's findings on decision not to compel Government to grant immunity for clear error), overruled on other grounds by United States v. Nordby, 225 F.3d 1053, 1059 (9th Cir.2000). As explained below, Washington's contention is without merit and must be rejected.

We have consistently held that a district court is without authority to confer immunity on a witness sua sponte. See United States v. Klauber, 611 F.2d 512, 517 (4th Cir.1979) ("there was no power in the district judge to confer immunity"). Indeed, as we recently observed in United States v. Moussaoui, 382 F.3d 453, 466 (4th Cir.2004), "no power to grant immunity is found in the Constitution." Under the applicable principles, only the prosecution is entitled to seek witness immunity in a federal criminal case. See, e.g., 18 U.S.C. § 6003(b) ("A United States attorney may, with approval of the Attorney General ... request an order [of immunity from the district court]."); United States v. Karas, 624 F.2d 500, 505 (4th Cir.1980) ("The decision to grant immunity is within the sole discretion of the prosecution."). While a district court may, in very limited circumstances, compel a United States Attorney to grant such immunity, a "`defendant bears a heavy burden when seeking to have the district court compel the grant of immunity.'" United States v. Mitchell, 886 F.2d 667, 669 (4th Cir.1989) (quoting United States v. Gravely, 840 F.2d 1156, 1160 (4th Cir.1988)). We have held that a district court is without authority to issue such an order unless a defendant has made (1) "a decisive showing of prosecutorial misconduct or overreaching and (2) the proffered evidence would be material, exculpatory and unavailable from all other sources." United States v. Abbas, 74 F.3d 506, 512 (4th Cir.1996).

The district court denied Washington's request for immunity to Gilmore, finding that Washington had failed to show any prosecutorial misconduct or overreaching. First of all, the court recognized that the prosecutor's statement that Gilmore possibly faced prosecution for perjury or obstruction of justice by repudiating his earlier statements was, in these circumstances, the act of a prudent prosecutor. See Mitchell, 886 F.2d at 670 (observing that witness is not entitled to immunity when witness is subject of criminal investigation). Furthermore,...