United States v. Perkins, Derrin A.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 1998 Decided March 20, 1998

No. 96-3115

United States of America,

Appellee

v.

Derrin A. Perkins,

Appellant

No. 96-3116

United States of America,

Appellee

v.

Andre P. Williams,

Appellant

______

No. 96-3117

United States of America,

Appellee

v.

McKinley L. Board,

Appellant

No. 96-3149

United States of America,

Appellee

v.

Gregory M. Thomas,

Appellant

Appeals from the United States District Court

for the District of Columbia

(No. 91cr00559-09)

(No. 91cr00559-11)

(No. 91cr00559-13)

(No. 91cr00559-16)

(No. 91cr00559-22)

Andrew Grosso, appointed by the court, argued the cause

for the appellants. James Maloney, Paul Kay, Mary E.

Davis and Marian Flynn, appointed by the court, were on

the joint brief.

Michael A. Fitzpatrick, Assistant United States Attorney,

argued the cause for the appellee. Mary Lou Leary, United

States Attorney at the time the brief was filed, and John R.

Fisher, Thomas C. Black and Carmen R. Kelley, Assistant

United States Attorneys, were on brief.

Before: Edwards, Chief Judge; Williams and Henderson,

Circuit Judges.

Opinion for the court filed by Circuit Judge Henderson.

Karen LeCraft Henderson, Circuit Judge: The appellants,

McKinley Board, Gregory Thomas, Donnell Williams, Andre

Williams and Derrin Perkins, were all convicted of drug

conspiracy charges. They challenge the district court's denial

of their motion for new trial based on a letter allegedly

written after trial by government witness Stepfoun Hartwell

that purported to recant Hartwell's trial testimony and to

describe witness tampering by prosecutors. At the new trial

hearings Hartwell refused to testify invoking his right against

self-incrimination under the Fifth Amendment to the United

States Constitution. The appellants contend that the district

judge erred in failing to secure Hartwell's testimony either by

granting him use immunity from prosecution or by finding he

had waived his Fifth Amendment privilege. We hold that the

district judge lacked authority to grant immunity without a

request from the United States Attorney and that neither the

letter nor Hartwell's trial testimony constituted waiver of his

Fifth Amendment privilege.

I.

The appellants were defendants in the second of four trials

of members of the "R Street Crew," so called because they

sold narcotics near the intersection of R Street and Lincoln

Road in Northeast Washington, D.C. Among the govern-

ment's trial witnesses were Hartwell, Frankie Pelham, Ken-

neth Sparrow and William O. Mayo, each of whom testified

about his dealings with members of the R Street Crew. On

February 11, 1993 the jury convicted all but one of the

defendants of conspiracy to distribute and to possess with

intent to distribute narcotics, in violation of 21 U.S.C. ss 841

and 846, and of conspiracy to participate in a racketeer

influenced corrupt organization, in violation of 18 U.S.C.

s 1962(d).1 The district judge sentenced each convicted de-

fendant to life imprisonment.

On January 28, 1995 Lawrence E. Freedman, a Fairfax,

Virginia lawyer, sent the district judge a handwritten letter

purportedly signed by Hartwell. The letter recited that

prosecutors had rehearsed the author's testimony with him

before trial and that the "majority" of his testimony had been

false and had been induced by prosecutors through bribery

and threats. The letter also claimed that prosecutors allowed

Hartwell, who was incarcerated at the time, to engage in

sexual activity and to use alcohol and marihuana in return for

his testimony. In a cover letter Freedman stated that Hart-

well had sworn to him that the letter's contents were true.

On February 10, 1995 the appellants filed a motion pursu-

ant to Federal Rule of Criminal Procedure 33 for a new trial

based on newly discovered evidence, namely Hartwell's letter.

They later supplemented the motion with written statements

from Pelham, Sparrow and Mayo recanting their trial testi-

mony and alleging similar prosecutorial misconduct. On Sep-

tember 12, 1995 the district judge conducted a hearing to

determine whether Hartwell was willing or could be com-

pelled to testify in the new trial proceedings. At the hearing

Hartwell invoked his Fifth Amendment privilege against self-

incrimination. In an order and memorandum opinion dated

September 14, 1995 the judge held that Hartwell had claimed

a valid privilege and that he had not waived it.

The government subsequently filed proffers of testimony

from Pelham, Sparrow and Mayo asserting that their trial

testimony had been truthful and that they had neither been

coerced nor received special favors or bribes from prosecu-

tors. In addition, Sparrow's proffer asserted that Hartwell

had signed his recantation "under duress" from appellant

Board. At hearings conducted on November 3, 1995 and

January 4, 1996 Sparrow, Mayo and Pelham each testified

__________

1 Defendant Steve Williams was acquitted of all charges against

him. Of the other defendants all but Andre Williams were convict-

ed of other related offenses as well.

that his trial testimony had been truthful and had not been

influenced by prosecutorial misconduct. The district judge

issued a memorandum opinion on September 6, 1996, denying

the motion for new trial and again concluding that Hartwell's

Fifth Amendment privilege protected him from testifying.

II.

The appellants challenge the denial of their motion for new

trial on the grounds that (1) the district judge should have

granted Hartwell use immunity and (2) Hartwell waived his

Fifth Amendment privilege.

Immunity

The appellants first assert the district judge erred in not

granting Hartwell use immunity from prosecution for his

testimony at the new trial hearings, thereby averting the

possibility of self-incrimination and the need to invoke the

Fifth Amendment. We disagree.

It is true that a district judge is authorized by statute to

immunize a witness claiming a Fifth Amendment privilege--

but only "upon the request of the United States attorney."

18 U.S.C. s 6003. The government made no such request of

the district judge and the judge therefore lacked authority to

invoke the statute. See United States v. Doe, 465 U.S. 605,

616-17 (1984) ("We decline to extend the jurisdiction of courts

to include prospective grants of use immunity in the absence

of the formal request that the statute requires."); see also

United States v. Lugg, 892 F.2d 101, 104 (D.C. Cir. 1989)

("The cases are legion and uniform that only the Executive

can grant statutory immunity, not a court. We are not an

exception to this universal rule and have previously approved

the view that 'it is not the proper business of the trial judge

to inquire into the propriety of the prosecution's refusal to

grant use immunity to a prospective witness.' ") (citations

omitted). The appellants nevertheless urge that we recognize

an "inherent" judicial authority to grant use immunity with-

out regard to the statute or to the government's position. In

the past we have repeatedly rejected claims of judicial author-

ity to grant such immunity. In Ellis v. United States, 416

F.2d 791 (D.C. Cir. 1969), we observed that, in enacting the

immunity statute, the Congress had "acted with care and

particularity, limiting the power to grant immunity--in the

presence of a valid claim of privilege--to a limited group of

federal officials" and therefore concluded that "[w]ith that

statute on the books, the power to grant immunity is plainly

outside the judicial province." 416 F.2d at 796-97. In Unit-

ed States v. Heldt, 668 F.2d 1238 (D.C. Cir. 1981), cert.

denied, 456 U.S. 926 (1982), we upheld the district court's

refusal to grant immunity, approving the view that " 'it is not

the proper business of the trial judge to inquire into the

propriety of the prosecution's refusal to grant use immunity

to a prospective witness.' " 668 F.2d at 1283 (quoting United

States v. Turkish, 623 F.2d 769, 779 (2d Cir. 1980) (Lombard,

J., concurring in part and dissenting in part), cert. denied, 449

U.S. 1077 (1981)). Finally, in United States v. Lugg, we

concluded that "the District Judge did not err in not granting

immunity that he could not grant nor in not ordering the

prosecution to grant immunity when he could not so order,"

stressing that "the court had no power to order such immuni-

ty." 892 F.2d at 104. Under circuit precedent, therefore, the

district judge lacked authority to grant Hartwell use immuni-

ty.2 Accordingly his failure to do so was not error.

__________

2 In Lugg the court noted that "[s]ome cases have indicated that

the government may be compelled to grant a defense witness

immunity in 'extraordinary circumstances.' " 892 F.2d at 104 (cit-

ing United States v. Pinto, 850 F.2d 927, 935 (2d Cir.) cert. denied,

488 U.S. 867 and 488 U.S. 932 (1988); United States v. Praetorius,

622 F.2d 1054, 1064 (2d Cir. 1979), cert. denied, 449 U.S. 860 (1980)).

"At least the Seventh and Ninth Circuits," the Lugg court observed,

"have indicated that courts may intervene in the prosecutorial

immunity decision '[w]here the prosecutor's decision not to grant a

witness use immunity has distort[ed] the judicial fact-finding pro-

cess.' " Id. (quoting United States v. Paris, 827 F.2d 395, 403 (9th

Cir. 1987) (Kozinski, J., dissenting; citing United States v. Taylor,

728 F.2d 930, 935 (7th Cir. 1984); United States v. Alessio, 528 F.2d

1079, 1082 (9th Cir.), cert. denied, 426 U.S. 948 (1976)). Without

deciding "[w]hether or not we would join the Seventh and Ninth

Circuits in this view were we presented with an appropriate case,"

Waiver

Next, the appellants assert that Hartwell waived his Fifth

Amendment privilege by testifying at trial and by writing the

letter. We agree with the district court that there was no

waiver.

In support of waiver the appellants rely on Rogers v.

United States, 340 U.S. 367 (1951), and, in particular, on the

statement therein that " '[i]f the witness himself elects to

waive his privilege, as he may doubtless do, since the privi-

lege is for his protection and not for that of other parties, and

discloses his criminal connections, he is not permitted to stop,

but must go on and make a full disclosure.' " 340 U.S. at 372

(quoting Brown v. Walker, 161 U.S. 591, 597 (1896)) (footnote

omitted). Construing Rogers we have held that "where a

non-indicted witness has waived his Fifth Amendment privi-

lege by testifying before a grand jury voluntarily and with

knowledge of his privilege, his waiver extends to a subsequent

__________

the Lugg court concluded that "[w]hatever it takes to constitute a

deprivation of a fair trial by the prosecution's failure to exercise its

broad discretion on immunity grants, the present case does not

present it." Id. We reach the same conclusion here. The appel-

lants argue that the prosecution's failure to immunize Hartwell for

testimony he might provide during the new trial proceedings some-

how deprived the trial itself of fairness. We fail to see the logic in

this. If anything could be said to have affected the trial's fairness it

would have been the prosecutorial misconduct before and during

trial alleged in the Hartwell recantation letter, not the post-trial

lack of immunity. And we cannot accept the allegations of the

letter which the district court rejected as unworthy of belief. See

App. exh. 4 at 20, 22-23; United States v. Ramos-Oseguera, 120

F.3d 1028, 1037 (9th Cir. 1997) ("The district court's factual finding

regarding whether the government did intentionally distort the fact-

finding process is reviewed for clear error."), cert. denied, 66

U.S.L.W. 3557 (Feb. 23, 1998) (No. 97-7425); cf. United States v.

Simmons, 699 F.2d 1250, 1253 (D.C. Cir.) (Edwards, J, dissenting)

(district court finding that "prosecutor's conduct neither denied

[defendant's] right to call a defense witness nor deprived him of a

fair trial" subject to "clearly erroneous" review), cert. denied, 464

U.S. 835 (1983).

trial based on an indictment returned by the grand jury that

heard his testimony." Ellis v. United States, 416 F.2d 791,

805 (D.C. Cir. 1969). At the same time, however, we cau-

tioned that "[t]he privilege of course remains as to matters

that would subject the witness to a 'real danger' of further

crimination." Id. at 802 (quoting Hoffman v. United States,

341 U.S. 479, 486 (1951)). Because Hartwell never disclosed

at trial that the testimony he was offering might be false, any

post-trial testimony indicating that it was--even a simple

acknowledgment that he wrote the recantation letter--posed

"a 'real danger' of further crimination." His trial testimony

therefore cannot be construed as a waiver of the privilege he

later invoked. See United States v. Wilcox, 450 F.2d 1131,

1141 (5th Cir. 1971) ("And so when a witness is asked a

question that could show that he had already committed a

crime, i.e., perjury at a prior trial, his refusal to answer is

permissible almost by the definition of self-incrimination. He

is still criminally accountable for his perjury, but he may not

be convicted out of his own mouth over his claim of privi-

lege."), cert. denied, 405 U.S. 917 (1972).

Finally, we conclude the recantation letter was not a waiver

of Hartwell's Fifth Amendment privilege. The appellants

contend that the letter waived Hartwell's privilege against

testifying about the truthfulness of his trial testimony just as

the grand jury testimony in Ellis was found to have waived a

witness's privilege as to its subject-matter. In Ellis, howev-

er, the court emphasized the importance to its holding of the

"credibility and reliability" that necessarily attaches to grand

jury testimony. 416 F.2d at 805 n.37. No such authority

supports the contents of the recantation letter, which the

district judge accurately characterized as "an undated, un-

sworn hearsay statement which has not been authenticated,"

App. exh. 4 at 22, and "wholly lacking in credibility," id. at 23;

see also id. at 20. Accordingly, we cannot accept the letter as

a waiver.3

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3 Nor does the record show, as it did in Ellis, that Hartwell

intended a knowing and voluntary waiver of privilege. See 416 F.2d

at 806 (noting that defendant "expressly stated to the grand jury

For the preceding reasons, the judgment of the district

court is

Affirmed.

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that he had consulted a lawyer prior to going before the grand jury;

that he wished to cooperate with the Government though he under-

stood he did not have to; that this cooperation was voluntary, and

that he knew anything he said could be used against him").