United States v. Marvin Chapman

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1415

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MARVIN CHAPMAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 10 CR 783 — Virginia M. Kendall, Judge.

ARGUED NOVEMBER 28, 2012 — DECIDED AUGUST 28, 2014

Before WOOD, Chief Judge, and KANNE and SYKES, Circuit

Judges.

SYKES, Circuit Judge. On a foggy night in Chicago, police

officers patrolling the west side of the city spotted Marvin

Chapman walking down a sidewalk carrying a bag with what

looked like the barrel of a rifle protruding from it. As the

officers approached, Chapman ducked into an abandoned

duplex. One officer followed Chapman into the house and saw

him drop the bag in the living room; another caught up with

2 No. 12-1415

Chapman as he tried to escape through a bedroom window. In

the bag they found a distribution quantity of heroin and an

assault rifle.

Chapman was charged with three crimes: possessing heroin

with intent to distribute, possessing a firearm in furtherance of

a drug-trafficking crime, and possessing a firearm as a felon. At

trial he claimed that the officers were either mistaken or lying

about having seen him carrying the bag. He testified that he

did not possess the bag at any time; it was either in the

building before he entered or was planted there. His girlfriend,

who was present and witnessed these events, also testified that

he was not carrying a bag. The jury returned a factually

inconsistent verdict, convicting Chapman of possessing the

drugs but acquitting him on the two gun-possession counts.

Chapman challenges his conviction on three grounds. First,

he contends that the judge erroneously admitted the details of

his prior heroin-trafficking conviction under Rule 404(b) of the

Federal Rules of Evidence for the purpose of proving that he

knew how heroin is packaged and intended to distribute the

drugs found in the bag. Second, he argues that the judge

erroneously precluded him from explaining his six prior felony

convictions. The convictions (though not their factual details)

were admitted for impeachment purposes. Chapman wanted

to blunt the impact of this evidence by telling the jury that he

had pleaded guilty and accepted responsibility in his earlier

cases, but the judge wouldn’t allow it. Finally, Chapman

challenges the judge’s refusal to compel the testimony of an

eyewitness who might have supported his version of events.

The witness was facing drug charges in a separate case and

No. 12-1415 3

invoked his Fifth Amendment privilege against self-

incrimination. Chapman insists that the witness had no

legitimate fear of self-incrimination and should have been

required to testify.

We agree with Chapman’s first claim of error: The judge

should not have admitted the details of Chapman’s heroin-

trafficking conviction under Rule 404(b). As explained in our

recent en banc opinion in United States v. Gomez, No. 12-1104,

2014 WL 4058963 (7th Cir. Aug. 18, 2014) (en banc), evidence of

other bad acts is inadmissible to show character or propensity

but may be admitted for another purpose provided that the

evidence is relevant under a theory that does not rely on an

inference about the actor’s propensity. See FED. R. EVID.

404(b)(1). Here, the judge allowed the government to use the

specifics of Chapman’s prior heroin conviction to prove

knowledge and intent, but the relevance of the evidence on

those issues depends entirely on a forbidden propensity

inference. Even if the evidence was relevant in a non-

propensity way, its probative value was substantially out-

weighed by the risk of unfair prejudice given that Chapman’s

defense was that he did not possess the bag at all. See FED. R.

EVID. 403. The jury’s inconsistent verdict shows that the Rule

404(b) error was not harmless.

That alone requires remand for retrial. For completeness,

however, we also conclude that the judge wrongly excluded

Chapman’s rehabilitation testimony but properly accepted the

eyewitness’s invocation of his privilege against self-

incrimination.

4 No. 12-1415

I. Background

Chapman has a long criminal record and has spent much of

his adult life incarcerated. When the events in this case

transpired, he had been out of jail for only about a month.

On the evening of March 8, 2010, a heavy fog enveloped the

City of Chicago. The Chicago Weather Center reported dense

fog at 11:06 p.m. Other weather records established that

visibility was 0.1 miles or less, causing the cancellation of

around 90 flights at Chicago airports. One defense eyewitness

described the fog as thick. In contrast the Chicago police

officers involved in Chapman’s arrest—Officers McHale,

Lipka, McGrory, and Bouch—did not remember any fog that

night.

The four officers testified that they were on patrol in an

unmarked squad car near the corner of Ohio Street and

Ridgeway Avenue on the city’s west side when they spotted

Chapman walking south on Ridgeway. The officers were

driving east on Ohio and observed Chapman from a distance

of about 150 feet (at the farthest point) to 25 feet (at the nearest

point). They testified that Chapman was carrying a dark-

colored bag with a cylindrical object—a rifle, they thought—

sticking out of it. When Chapman saw the approaching

officers, he fled into an abandoned two-flat building at

619 North Ridgeway.

Chapman’s account differs. He testified that he was

standing on the street near the intersection of Ohio Street and

Ridgeway Avenue with his girlfriend, Damuriel Collier. With

No. 12-1415 5

them was Derrick Lewis, an alleged drug dealer also known as

“D.C.” Collier, who also testified at Chapman’s trial, admitted

that she was talking to Lewis about selling cocaine for him.

When they saw the unmarked police car approaching, Chap-

man and Collier walked into the abandoned flat, and Lewis

walked away in another direction. Chapman and Collier both

testified that at no time—either before or after entering the

building—did Chapman possess a bag.

As Chapman and Collier disappeared into the house,

Officers McHale and Lipka jumped from the patrol car and

gave chase. McHale ran around the side of the house and

down a gangway, while Lipka entered the house through the

front door. The building was unlit, but Lipka carried a flash-

light. He testified that he saw Chapman drop the bag in the

living room and then attempt to jump out of a bedroom

window. He also recalled hearing a “thud” as the bag hit the

ground. Lipka alerted McHale, who saw Chapman coming

through the window and detained him.

Chapman’s account again differs. Chapman and Collier

testified that a police officer with a flashlight banged on the

front door of the house, and Collier opened the door for him.

Collier also said she heard breaking glass in the rear of the

building. They agreed that Chapman jumped—or tried to

jump—from a window.

Chapman also introduced evidence that Officer McHale’s

account was not physically possible. A photo taken sometime

after Chapman’s arrest showed a rusted and partially broken

fence blocking the gangway that McHale said he used to access

the side of the building; a similar photo taken sometime before

6 No. 12-1415

the arrest also showed a fence blocking the passageway. Collier

testified that the fence was in place on the night of Chapman’s

arrest. Putting this evidence together, Chapman argued that

the fence was blocking the gangway on March 8, 2010, and

McHale could not possibly have accessed the passageway as he

claimed.

There were other unexplained discrepancies as well. Collier

testified that the police handcuffed her at the scene, put her in

a police vehicle, questioned her, and eventually let her go.

Officer McHale testified that no female witness was taken into

custody. Collier is not listed as a witness on any police report.

Officer Lipka searched the bag (on closer inspection, it

turned out to be a dark blue laundry bag) and found a loaded

AR-15 assault rifle and two plastic bags containing 28 foil

packages of heroin, slightly over 10 grams in total weight. No

fingerprints were found on the gun, and the few usable prints

on the drug packaging did not match Chapman’s. One of the

officers searched Chapman and found three small bags of

marijuana and $9 in cash.

The officers recalled that another female was present in the

abandoned house, but only one of them spoke with her. After

determining that she was not a safety concern, the officer told

her to leave. No police report mentions this woman.

Chapman was indicted for possessing heroin with intent to

distribute, 21 U.S.C. § 841(a)(1); possessing a firearm in

furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(1)(A);

and possessing a firearm as a felon, id. § 922(g)(1). His theory

of defense was that he never possessed the bag, let alone the

drugs and gun inside it. He claimed that he never physically

No. 12-1415 7

held the bag, never controlled it, and prior to his arrest had

never seen it before. It was either already in the abandoned

house when he entered or it was planted.

Before trial the government moved to admit the details of

Chapman’s 2006 conviction for possessing heroin with intent

to distribute for the purpose of proving Chapman’s knowledge

and intent. The government planned to cross-examine

Chapman about his six prior felony convictions for impeach-

ment purposes as permitted under Rule 609, but the motion in

limine sought permission to introduce the specifics of the 2006

heroin-trafficking conviction as substantive evidence under

Rule 404(b).

Chapman responded that his knowledge and intent were

not really at issue because his defense was that he never

possessed the bag in the first place. He offered to stipulate that

the heroin found in the bag was distribution quantity, so

whoever possessed it intended to distribute the drugs. Under

these circumstances, he explained, the only purpose for

admitting this evidence would be to show that he had a

propensity for dealing heroin.

The judge granted the government’s motion, apparently

under the impression that Chapman was denying that he

intended to possess or distribute the heroin found in the bag.

The government extensively cross-examined Chapman about

the specifics of his 2006 heroin conviction. Some of the prosecu-

tor’s questions elicited testimony about Chapman’s familiarity

with heroin packaging; others asked about the mechanics of

selling the drug.

8 No. 12-1415

The government also impeached Chapman with his six

prior felony convictions. Consistent with the requirements of

Rule 609, however, these questions were limited to the fact that

he had been convicted of crimes. Still, this line of inquiry

featured prominently in the government’s cross-examination.

For example, the prosecutor’s first question to Chapman was,

“Sir, you’re a drug dealer?” Other questions included:

“Mr. Chapman, is it fair to say that you are a criminal who’s

been convicted of both drugs and violence?” And, “Wouldn’t

it be fair to say that you’re a six-time convicted felon?”

In an attempt at rehabilitation, defense counsel sought to

elicit testimony from Chapman that he had pleaded guilty in

each of his prior cases because he was in fact guilty. The point

was to set up an argument that Chapman’s acceptance of

responsibility was suggestive of honesty, minimizing the

harmful effect of his criminal record on his credibility. The

judge sustained the government’s objection and disallowed

this line of questioning.

Chapman’s counsel also subpoenaed Lewis to testify about

the events of March 8, expecting him to corroborate

Chapman’s and Collier’s testimony that they were standing on

the street near the abandoned duplex when the police arrived

at the scene and that Chapman did not have a bag with him.

But Lewis was facing charges of drug dealing stemming from

his own arrest on March 9, 2010. He invoked his Fifth Amend-

ment privilege against self-incrimination.

Chapman asked the judge to compel Lewis’s testimony,

assuring the court and Lewis’s counsel that direct examination

would entail only a few questions and would concentrate on

No. 12-1415 9

whether Chapman was carrying a bag. This limited line of

inquiry, Chapman insisted, would not raise the possibility of

self-incrimination. Lewis’s attorney, with support from the

government, continued to resist the subpoena, explaining that

even if Chapman’s direct examination would not risk self-

incrimination, the government’s cross-examination very well

might. For example, any questions about his use of the nick-

name “D.C.” could be self-incriminating in his own case

because his use of aliases was at issue there. And the govern-

ment might also question him about whether he had been

talking to Collier about selling drugs.

In response to these concerns, Chapman suggested that the

court limit the government’s cross-examination. The judge

rejected this solution, holding instead that Lewis had a good-

faith fear of self-incrimination and could not be compelled to

testify. Chapman asked the court to require Lewis to take the

witness stand and invoke his Fifth Amendment privilege in

front of the jury. The judge rejected this request as well and

released Lewis from the subpoena.

The jury returned an inconsistent verdict, convicting

Chapman of possessing heroin with intent to distribute but

acquitting him on the two firearm counts. The court imposed

a sentence of 210 months, and this appeal followed.

II. Discussion

A. Admission of Other-Act Evidence

Chapman first challenges the district court’s decision to

admit the specifics of his 2006 conviction for possession of

10 No. 12-1415

heroin with intent to distribute. He argues that this evidence

served no purpose other than to show that he had a propensity

to deal heroin, in violation of the prohibition in Rule 404(b)

against using other-act evidence to prove propensity. Alterna-

tively, he argues that this evidence should have been excluded

under Rule 403.

As we explained in our recent en banc decision in Gomez:

Rule 404(b) excludes relevant evidence of

other crimes, wrongs, or acts if the purpose is to

show a person’s propensity to behave in a certain

way, but other-act evidence may be admitted for

“another purpose,” including, but not limited to,

“proving motive, opportunity, intent, prepara-

tion, plan, knowledge, identity, absence of mis-

take, or lack of accident.”

2014 WL 4058963, at *6 (quoting FED. R. EVID. 404(b)(2)). We

also repeated some earlier cautionary words about admitting

evidence of a defendant’s other drug-related crimes in a drug

prosecution like this one: “Especially in drug cases … , other-

act evidence is too often admitted almost automatically,

without consideration of the ‘legitimacy of the purpose for

which the evidence is to be used and the need for it.’” Id. at *4

(quoting United States v. Miller, 673 F.3d 688, 692 (7th Cir.

2012)).

We explained what the proponent of other-act evidence

must do in any case—whether drug-related or otherwise—to

win a favorable ruling on its admissibility:

No. 12-1415 11

[I]t’s not enough for the proponent of the other-

act evidence simply to point to a purpose in the

“permitted” list and assert that the other-act

evidence is relevant to it. Rule 404(b) is not just

concerned with the ultimate conclusion, but also

with the chain of reasoning that supports the

non-propensity purpose for admitting the evi-

dence. In other words, the rule allows the use of

other-act evidence only when its admission is

supported by some propensity-free chain of

reasoning.

Id. at *7 (citation omitted). Moreover, Gomez emphasized that

even if the proponent of the other-act evidence can establish its

relevance to a non-propensity purpose in a propensity-free

way, the district court “must in every case assess whether the

probative value of the other-act evidence is substantially

outweighed by a risk of unfair prejudice and may exclude the

evidence under Rule 403 if the risk is too great.” Id. at *11.

Rule 403 balancing, we noted, is especially important in the

context of other-act evidence, which “raises special concerns

about unfair prejudice because it almost always carries some

risk that the jury will draw the forbidden propensity infer-

ence.”1 Id. at *8. Accordingly, the trial judge’s Rule 403 balanc-

ing of the probative value of the evidence against the risk of

1

Rule 403 applies to all evidence and gives the court discretion to exclude

otherwise relevant evidence “if its probative value is substantially

outweighed by a danger of … unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”

12 No. 12-1415

unfair prejudice “does much of the heavy lifting in the admissi-

bility analysis by excluding other-act evidence that may be

slightly probative through a non-propensity theory but has a

high likelihood of creating unfair prejudice by leading a jury to

draw conclusions based on propensity.” Id.

Here, the district court permitted the government to

introduce the details of Chapman’s 2006 conviction for heroin

trafficking for the purpose of proving that he knew the

substance found in the bag was heroin (based on familiarity

with its packaging) and possessed the drugs with intent to

distribute them. There are two problems with this theory of

admissibility. First, the details of the prior heroin conviction

are relevant to Chapman’s knowledge and intent only through

a paradigmatic inference about propensity: because Chapman

sold heroin before he must have intended to do so again in this

instance.

Second, even if the government had articulated a theory of

relevance that does not rely on an impermissible propensity

inference (and it did not), the probative value of the heroin-

trafficking conviction is substantially outweighed by the risk of

unfair prejudice in the specific context of this case. Chapman’s

defense rested entirely on his claim that he never possessed the

bag at all. His knowledge of heroin packaging was a red

herring. He never argued that he didn’t recognize the sub-

stance in the bag as heroin; instead, he claimed that he did not

possess the bag, period.

It’s true that Chapman’s intent was formally “at issue”

because the drug charge in this case—possession with intent to

distribute—is a specific-intent crime. See id. at *10–11. Even so,

No. 12-1415 13

as we explained in Gomez, the degree to which the non-

propensity fact for which the other-act evidence is admitted

actually is contested in the case is an important factor in the

court’s assessment of the probative value of the evidence under

Rule 403. Id. at *11. Accordingly, we held that meaningful

Rule 403 balancing “should take account of the extent to which

the non-propensity fact for which the [other-act] evidence is

offered actually is at issue in the case.” Id. That did not happen

here.

Indeed, Chapman offered to stipulate that the heroin in the

bag was distribution quantity so that whoever possessed the

bag intended to distribute the drugs that were found in it.

Although “the prosecution is entitled to prove its case free

from any defendant’s option to stipulate the evidence away,”

Old Chief v. United States, 519 U.S. 172, 189 (1997), Chapman’s

theory of defense and his offer to stipulate that the drugs were

distribution quantity significantly affected the Rule 403 bal-

ance. With intent basically uncontested, the risk of unfair

prejudice took on greater significance. And although the court

gave the jury a limiting instruction, the temptation to draw an

impermissible propensity inference was great.

The facts of United States v. Miller closely track the facts of

this case. There the government found drugs in a room where

Miller was alleged to be staying and accused him of possessing

them with intent to distribute. 673 F.3d at 694. Miller did not

dispute that the drugs were packaged for distribution, but

rather flatly denied that the drugs were his or that he was even

staying in the room where they were found. Id. at 696. The

district court allowed the government to introduce the details

14 No. 12-1415

of Miller’s past drug-distribution convictions for the purpose

of proving intent. We found reversible error. Id. at 700 (“The

relevance of the prior conviction here boils down to the

prohibited ‘once a drug dealer, always a drug dealer’ argu-

ment.”).

We reach the same conclusion here. The government insists

that the Rule 404(b) error did not contribute to the verdict and

so was harmless. That argument contradicts the government’s

earlier explanation for the jury’s inconsistent verdict. At

sentencing Chapman’s counsel reminded the court that the

jury had returned a factually inconsistent verdict. The govern-

ment responded by rationalizing the inconsistency by reference

to the effectiveness of the Rule 404(b) evidence:

As the Court recalls, there were — there was

the testimony of four law enforcement officers.

However, on the gun count, that was uncorrobo-

rated by other evidence. However, on the drug

count, there was some additional evidence,

namely, there was 404(b) evidence, which the

jury was allowed to consider for certain pur-

poses, and that evidence went to the drug

charge. And there was also the testimony of

Mr. Chapman himself and his prior drug deal-

ing.

So it’s the Government’s position that while

the jury found that it met its burden of proof on

the drug charge, it obviously did not find that

the Government had met its burden on the gun

charges.

No. 12-1415 15

We think the government’s earlier position is the correct

one. The prosecution’s evidence was essentially the same

across the drug and gun charges, with the notable exception of

the erroneously admitted other-act evidence, which had a

bearing on the count on which the jury convicted—the drug

charge—but not on the gun counts on which Chapman was

acquitted. It’s hard to imagine a better indicator that the

Rule 404(b) error swayed the jurors. The test for harmless error

in this context is “whether, in the mind of the average juror, the

prosecution’s case would have been significantly less persua-

sive had the improper evidence been excluded.” Gomez, 2014

WL 4058963, at *15 (quoting United States v. Vargas, 689 F.3d

867, 875 (7th Cir. 2012)). The jury’s factually inconsistent

verdict is strong evidence that the government’s case would

have been significantly less persuasive without the other-act

evidence.

Even aside from the inconsistent verdict, the remaining

evidence was not so overwhelming that we can say with

confidence that the Rule 404(b) error was harmless. The officers

initially observed Chapman from a distance through a dense

fog, which they professed not to recall, casting some doubt on

their testimony. Chapman’s flight from the police is suggestive

of guilt but far from conclusive, especially in light of

Chapman’s criminal history and the fact that he had marijuana

in his pocket. Chapman and Collier both testified that he was

not carrying a bag either before or after they entered the

abandoned house. The jury likely discounted their testimony

based on their admitted history of drug dealing. On the other

hand, discrepancies and gaps in the evidence undermined the

officers’ account: (1) Chapman’s fingerprints were not found

16 No. 12-1415

on any of the contraband, and someone else’s fingerprints were

on the drug packaging; (2) Officer McHale’s account of

entering the gangway was contradicted by photographic

evidence suggesting that he could not physically have done so;

and (3) neither Collier nor the unidentified woman who was in

the abandoned house are mentioned in the police reports.

In short, here, as in Miller, the government’s case would

have been significantly less convincing if the improperly

admitted other-act evidence had been excluded. The prosecu-

tor seemed to concede as much in struggling to explain the

inconsistent verdict at sentencing. The Rule 404(b) error was

not harmless.

B. The Exclusion of Chapman’s Rehabilitation Testimony

The district court permitted the government to introduce

Chapman’s six prior felony convictions to impeach his credibil-

ity as a witness. Chapman sought to rehabilitate himself by

explaining that he had pleaded guilty in his earlier cases

because he in fact was guilty and wanted to take responsibility

for his actions. The point of this testimony was to set up an

argument that despite his felonious history, Chapman is not

necessarily a dishonest person. Or so his counsel wanted to

argue. The government objected, and the judge sustained the

objection, precluding this line of inquiry.

Chapman argues that this was error, and we agree. As an

initial matter, the judge seems to have misunderstood the point

of this evidence. Chapman’s argument was that he had

pleaded guilty to past charges to take responsibility for his

No. 12-1415 17

actions and that his guilty pleas suggested that even though he

has a criminal record, his credibility should not be discounted,

or at least not discounted as much as it otherwise would be

without this evidence. In contrast the judge thought that

Chapman wanted to argue that because he had not contested

his earlier cases but was contesting this one, he must be

innocent. There is an important difference here: Chapman’s

actual argument was directed at his credibility as a witness; the

argument the judge thought he was making was directed at

guilt or innocence.

Beyond this misunderstanding, the record does not clearly

reveal the basis for the judge’s ruling. At a break in the

testimony, Chapman’s counsel asked the judge to clarify her

decision to disallow the proposed rehabilitation testimony. At

this point in the transcript, the judge seems to rely on Rule 609,

which governs the admission of criminal convictions for

impeachment purposes. That rule provides, in pertinent part:

(a) … The following rules apply to attacking

a witness’s character for truthfulness by evidence

of a criminal conviction:

(1) for a crime that, in the convicting

jurisdiction, was punishable by death or by

imprisonment for more than one year, the

evidence: …

(B) must be admitted in a criminal case

in which the witness is a defendant, if the

probative value of the evidence out-

weighs its prejudicial effect to that defen-

dant … .

18 No. 12-1415

FED. R. EVID. 609(a). In other words, felony convictions are

presumptively admissible as evidence of untruthfulness if the

probative value of this evidence is not outweighed by its

prejudicial effect.2

But nothing in Rule 609 says that this method of impeach-

ment is irrebuttable. To the contrary, the rules of evidence

specifically allow rehabilitation by introduction of other

evidence of truthfulness. Rule 608 provides that character and

reputation evidence and in some cases specific instances of

conduct may be admitted to support a witness’s truthfulness

if his credibility has been attacked.3 So to the extent that the

2

The rule provides that certain prior felonies are presumptively admissible

to impeach a testifying defendant unless the court finds that “the probative

value of the evidence outweighs its prejudicial effect to that defendant.”

FED. R. EVID. 609(a)(1)(B). This is a higher standard than Rule 403, which

more generally gives the court discretion to exclude otherwise relevant

evidence if its probative value is substantially outweighed by its prejudicial

effect. See FED. R. EVID. 403. The district court did not expressly weigh the

probative value of the convictions against their prejudicial effect as required

by Rule 609, but Chapman does not challenge their admission, so we need

not address the issue further.

3

Although Rule 608(b) refers to inquiries into specific instances of conduct

“on cross-examination” once a witness’s truthfulness has been challenged,

counsel can inquire into specific instances of the witness’s truthful conduct

to rehabilitate the witness on redirect examination. 4 MICHAEL H. GRAHAM,

HANDBOOK OF FEDERAL EVIDENCE § 608:4 n.12 (7th ed. 2012) (“If character

for truthfulness or untruthfulness surfaces for the first time on cross-

examination, redirect is treated as equivalent to cross-examination for the

purpose of permitting use of specific instances of conduct under

Rule 608(b).”); cf. Gov’t of V.I. v. Roldan, 612 F.2d 775, 778 n.2 (3d Cir. 1979)

(continued...)

No. 12-1415 19

judge was under the impression that Rule 609 or any other rule

categorically precluded Chapman’s proffered rehabilitation

testimony, the ruling was based on an error of law and

necessarily was an abuse of discretion. See United States v.

Smith, 674 F.3d 722, 728 (7th Cir. 2012) (“The district court

abuses its discretion when it makes an error of law … .”

(quoting United States v. Freeman, 650 F.3d 673, 678 (7th Cir.

2011))).

The record reflects no other basis for excluding this testi-

mony. Neither the prosecutor nor the judge relied on Rule 403,

for instance, and nothing in the discussion among counsel and

the court suggests that the judge was in effect balancing the

probative value of the rehabilitation evidence against the

danger of unfair prejudice, confusion of the issues, or any other

permitted basis for excluding otherwise relevant evidence.

Accordingly, it was error to exclude Chapman’s proposed

rehabilitation testimony.

The remaining question is whether the error was harmless.

We have already held that the Rule 404(b) error requires a new

trial, so the harmlessness question on this additional error is

superfluous. In any event, the parties have not addressed

whether the exclusion of Chapman’s rehabilitation testimony

3

(...continued)

(upholding admission of specific instances of conduct to demonstrate

character on redirect examination, explaining: “Character evidence was

introduced for the first time on cross-examination. For the purpose of

rebuttal of this evidence, therefore, the Government's redirect examination

was the functional equivalent of the ‘cross-examination’ referred to in

rule 405(a).”).

20 No. 12-1415

was prejudicial, and because the government bears the burden

of showing harmlessness, United States v. Vasquez, 635 F.3d 889,

899 (7th Cir. 2011), Chapman wins by default.

C. The Exclusion of Derrick Lewis’s Testimony

Chapman’s last argument is that the district court’s refusal

to compel Derrick Lewis’s testimony deprived him of his Sixth

Amendment right to compulsory process. See U.S. CONST.

amend. VI (“In all criminal prosecutions, the accused shall

enjoy the right … to have compulsory process for obtaining

witnesses in his favor … .”). Chapman’s argument pits his

Sixth Amendment right to compulsory process against Lewis’s

Fifth Amendment right against self-incrimination.

The conventional response to this clash of rights is that the

witness’s Fifth Amendment privilege trumps the defendant’s

Sixth Amendment right. See United States v. Mabrook, 301 F.3d

503, 506 (7th Cir. 2002). The analytical framework is this:

When a potential witness indicates that he will

likely invoke his privilege against self-incrimina-

tion, the district court should ensure that the

witness cannot possibly incriminate himself. If a

witness’s testimony may make him vulnerable to

prosecution, the trial court may allow him to

invoke his privilege and refuse to testify.

Id.

Thus, the witness’s testimony need only “make [the

witness] vulnerable to prosecution.” Id. This means that the

No. 12-1415 21

Fifth Amendment may be invoked “where the witness has

reasonable cause to apprehend danger from a direct answer”

to the questions that may be put to him during his compelled

testimony.4 United States v. Longstreet, 567 F.3d 911, 922 (7th

Cir. 2009) (internal quotation marks omitted). Further, because

“[a] testifying witness cannot deprive the opposing party of the

right of cross-examination,” id. at 923 (internal quotation marks

omitted), the witness’s Fifth Amendment privilege must be

honored even if the danger of self-incrimination arises from

cross-examination rather than direct examination. Although

we normally review claimed constitutional errors de novo, this

particular question is subject to more deferential review for

abuse of discretion. See Mabrook, 301 F.3d at 506.

4

Although the text of the Fifth Amendment provides that “[n]o person …

shall be compelled in any criminal case to be a witness against himself,”

U.S.CONST. amend. V (emphasis added), established doctrine assumes that

a person may invoke his Fifth Amendment privilege against self-incrimina-

tion in a variety of settings beyond his own criminal trial. As the Supreme

Court has explained:

The Amendment not only protects the individual against

being involuntarily called as a witness against himself in

a criminal prosecution but also privileges him not to

answer official questions put to him in any other proceed-

ing, civil or criminal, formal or informal, where the

answers may incriminate him in future criminal proceed-

ings.

Lefkowitz v. Turley, 414 U.S. 70, 77 (1973). Where, as here, a witness’s Fifth

Amendment right against self-incrimination conflicts with the defendant’s

Sixth Amendment right to compel witnesses in his favor, this broad

understanding of the Fifth Amendment privilege effectively favors potential

defendants over actual defendants.

22 No. 12-1415

Prosecutors can resolve the tension between Fifth and Sixth

Amendment rights by granting testimonial immunity under

18 U.S.C. § 6002. Once immunity is granted, the witness may

be compelled to testify, but his testimony cannot be used

against him in his own criminal trial. 18 U.S.C. § 6002. This

mechanism rarely benefits defendants, however, because

[a]s a matter of [Department of Justice] policy,

18 U.S.C. § 6002 will not be used to compel the

production of testimony or other information on

behalf of a defendant except in extraordinary

circumstances where the defendant plainly

would be deprived of a fair trial without such

testimony or other information. This policy is not

intended to preclude compelling a defense

witness to testify if the prosecutor believes that

to do so is necessary to a successful prosecution.

UNITED STATES ATTORNEYS’ MANUAL ch. 9-23.214, available at

http://www.justice.gov/usao/eousa/foia_reading_room/ usam/

title9/23mcrm.htm (last visited Aug. 26, 2014) (emphases

added). In other words, it’s not enough that a defendant might

be deprived of a fair trial without the desired testimony; the

government’s policy is to grant immunity only where the

failure to do so would plainly deprive the defendant of a fair

trial.

Some courts have assumed the power to grant immunity

themselves. See, e.g., Gov’t of V.I. v. Smith, 615 F.2d 964, 974

(3d Cir. 1980) (requiring defense-witness immunity “when it is

found that a potential defense witness can offer testimony

which is clearly exculpatory and essential to the defense case

No. 12-1415 23

and when the government has no strong interest in withhold-

ing use immunity”). We have not. See United States v. Herrera-

Medina, 853 F.2d 564, 568 (7th Cir. 1988); United States v. Hooks,

848 F.2d 785, 802 (7th Cir. 1988). Nor have we assumed the

authority to order a prosecutor to grant a witness immunity.

See United States v. Burke, 425 F.3d 400, 411 (7th Cir. 2005).

Instead, we have held that a prosecutor’s refusal to do so

may amount to a denial of due process, but only in very

limited circumstances:

[T]he prosecutor’s power to seek or to refuse to

seek immunity is limited by the constitutional

right to due process of the law. Accordingly, this

appellate court will not review a prosecutor’s

immunization decisions in the absence of sub-

stantial evidence showing that the prosecutor's

actions amounted to a clear abuse of discretion

violating the due process clause. The prosecutor

has abused his discretion when he intends to use

his authority to distort the judicial fact-finding

process.

Hooks, 848 F.2d at 799 (internal quotation marks and citations

omitted); see also Burke, 425 F.3d at 411 (“A defendant’s due-

process rights are violated when the prosecutor abuses his

authority to immunize witnesses with the intention of distort-

ing the fact-finding process.”); Herrera-Medina, 853 F.2d at 568

(explaining that although a court cannot order the government

to immunize a defense witness, a court can dismiss an indict-

ment when the prosecutor’s refusal to grant immunity

amounts to a denial of due process). As far as we can tell, this

24 No. 12-1415

court has never found that the failure to grant immunity to a

defense witness deprived the defendant of due process. See

Herrera-Medina, 853 F.2d at 568 (“[W]e know of no case that has

actually been dismissed on this ground.”). Chapman has not

argued that the government abused its authority and refused

to immunize Lewis to distort the fact-finding process.

We agree with the district court that Lewis’s invocation of

the privilege against self-incrimination had a good-faith basis.

If the judge had compelled Lewis to testify, the prosecutor

almost certainly would have asked about his use of the

nickname “D.C.” and the precise nature of his relationship

with Collier, who had already testified that she was at the

scene talking to Lewis about dealing drugs for him. More

generally, the prosecutor likely would have cross-examined

him about his history of dealing drugs. So even if Chapman’s

direct examination was narrowly limited, the government’s

probable cross-examination of Lewis could “make him vulner-

able to prosecution.” Mabrook, 301 F.3d at 506. The district

court properly accepted Lewis’s invocation of the Fifth

Amendment and refused to compel him to testify.

We caution, however, that this is not the end of the story.

Whether a witness may invoke the privilege against self-

incrimination depends on the circumstances that the witness

faces, and Lewis’s circumstances may have changed since the

time of the first trial. On retrial the district court may need to

assess Lewis’s invocation of the Fifth Amendment anew.

No. 12-1415 25

III. Conclusion

For the foregoing reasons, we VACATE Chapman’s convic-

tion and REMAND for a new trial.5

5

Chapman also challenged his sentence, arguing that the district court

failed to adequately address his principal arguments in mitigation. Our

decision to vacate and remand for a new trial moots the challenge to the

sentence. Also moot is Chapman’s Motion for Disclosure of certain emails

between the district judge and a deputy marshal or his wife. On July 21,

2014, the judge issued an order recusing herself from further participation

in this case, and in any event, under Circuit Rule 36, a case must be

reassigned whenever there is a remand for retrial.