United States v. Walter Morrison A/K/A "Skip" Morrison Appeal of Nick Boscia

ROSENN, Circuit Judge

(dissenting).

The Assistant United States Attorney may have acted imprudently and perhaps reprehensibly in his conference with Sally Bell, but I do not believe his actions denied the defendant Boscia a fair trial. A defendant has the right to have his witnesses testify free from intimidation. A defendant, however, may not complain when his witness freely exercises the privilege to plead the fifth amendment. I, therefore, respectfully dissent.

Sally Bell was originally indicted with Boscia and others, but the charges against her were dismissed at the instance of the Government when it was discovered that she was under eighteen years of age at the time of the alleged offense. She apparently understood that with the dropping of the federal charges, she was relieved from prosecution for her role in the conspiracy. As the majority point out, “[tjhis, however, was not true. Under 18 U.S.C. § 5032 she could still be charged as a juvenile in state court, which is now the usual forum for federal juvenile offenders, and if the state declined to prosecute her, she could be prosecuted by permission of the United States Attorney General in the federal court.” Majority Opinion, p. 225.

Sensing that the defense strategy was to unload all responsibility for the alleged violations upon Ms. Bell, the indictment against her having been dismissed, and knowing she was without counsel, Mr. Villanova, the Assistant United States Attorney, sent her messages through Boscia’s counsel, Mr. Perr. The exact language of the messages is in dispute, but the gist was that the dismissal of the indictment against Ms. Bell was not necessarily a final disposition of her ease. Mr. Villanova further informed Mr. Perr that he expected the state court to proceed against Ms. Bell as a juvenile; that, absent such prosecution, he would seek permission from the Attorney General to prosecute her in the federal court; and that since she was now eighteen years of age, if she took the stand in behalf of the defense and lied, she could be prosecuted for perjury.

*230 The Assistant United States Attorney became concerned that Boscia’s lawyer had not passed this information on to Ms. Bell. 1 He thereupon had her brought to his office under subpoena at the close of the Government’s ease and, in the presence of several law enforcement officers, personally advised her of her rights and of the perils of testifying falsely. Despite these admonitions and any feelings of intimidation which she may have had at that time, 2 she appeared in court in behalf of the defense. Upon being sworn, the following colloquy took place between her and the trial judge:

THE COURT: Miss Bell, it is my duty to warn you that under the Fifth Amendment of the United States Constitution you cannot be compelled to testify to any matters that you feel might incriminate you, and therefore, on those matters you would have a right to remain silent. If, however, you elect to testify, anything you say might be used against you in court. You do have the right to have an attorney advise you if you wish to testify or not.

SALLY BELL: Yes, sir, I’ll testify.

THE COURT: Do you want an attorney?

SALLY BELL; No.

Ms. Bell thereupon testified for the defense. An examination of the transcript of her testimony reveals that she responded to questions of counsel and court “fully and intelligently.” 3 She selectively refrained from answering any questions which she thought might incriminate her.

Under these circumstances, I cannot agree with the majority that the repeated warnings of the Assistant United States Attorney to Ms. Bell, culminating in his personal interview with her, had any intimidating effect upon her. She appeared in court for the defense; she testified for the defense, and when she refused to respond to certain questions, she was exercising her fifth amendment privilege precisely as she was instructed in court by the trial judge.

This young lady was obviously a perceptive, bright, and alert witness. The testimony she did give disclosed that she had considerable information about the alleged conspiracy and that she also might have been involved as a principal. For example, she testified readily as to the arrangements made on June 26, 1974, at the McBride (a co-defendant) apartment, for purchase of hashish at Penn State by Malloy. She gave the names of those who were present and who were to drive Malloy there to make the purchase. She also testified on direct examination that she knew what was to take place at State College but, when asked how she knew, she replied, “I’ll take the Fifth Amendment.”

She further testified that the defendant Boscia was present when the arrangements were made and that she was present when Boscia returned that evening from State College. Notwithstanding her fifth amend *231 ment plea, when Mr. Perr asked her whether Boscia told her what had in fact occurred at State College that evening, she replied affirmatively as follows:

A.: Mr. Upton and Mr. Ramsley and Mike McBride and Nick Boscia drove up.

Q.: Drove where?

A.: To State College, Pennsylvania, and they met Skip — Walter Morrison, and Mr. Upton and Mr. Ramsley purchased the hashish, and they drove back. They came back.

Intimidation, especially in the context in which the term is used under the facts of this case, is not a mechanistic process in which equal pressures applied to different persons achieve identical results. Pressures which overawe the weak or sear the sensitive may be hurled aside by the strong or totally disregarded by the dullard. The extent if any, to which the pressure is effective depends upon the response of the person to whom it is directed. At issue, therefore, is the reaction of the witness under the force of the alleged pressure.

I see nothing in Ms. Bell’s conduct or testimony which reveals fright or any semblance of intimidation on her part. She impresses me as an intelligent and strong personality. Only when she thought her testimony might incriminate her personally did she refuse to respond. The district court made no finding that she was intimidated. The district court’s observation (see note 9, majority opinion) that Ms. Bell chose not to incriminate herself because of the remarks of the Assistant United States Attorney does not mean that she was acting under coercion or intimidation. She gave her testimony self-reliantly and under the protective arm of the court. Moreover, she could not state that she would not have taken the fifth amendment even if Mr. Villanova had not warned her. 4

I find Webb v. Texas, 409 U.S. 95 , 93 S.Ct. 351 , 34 L.Ed.2d 330 (1972), distinguishable. In that case, the defendant’s only witness refused to testify and did not take the stand after a lengthy admonition by the trial judge on the dangers of committing perjury and its possible effect on his current prison sentence and parole. The judge in that case threatened the witness when called by telling him that “[i]f 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. . . . ” In the instant case, however, there was merely an admonition; it was not by the trial judge, not in court, and in fact, the witness did not refuse to testify. She testified at length and freely. She rejected the court’s offer of a lawyer to advise her.

The focus of the Court’s concern in Webb was that “in light of the great disparity between the posture of the presiding judge and that of a witness in these circumstances, the unnecessarily strong terms used by the judge could well have exerted such duress on the witness’ mind as to preclude him from making a voluntary choice whether or not to testify.” Id. at 98 , 93 S.Ct. at 353 , 34 L.Ed.2d at 333 . In the case sub judice, a judge did not exert pressure on the witness; on the contrary, he used his office to provide her every opportunity to testify freely. The witness was not driven from the stand; she took it willingly and gave testimony freely.

I do not discern any denial of a fair trail to the defendant. The evidence of his guilt is overwhelming. I would affirm the judgment of the district court.

. As the case unfolded, there was ample basis for his concern. At the evidentiary hearing conducted by the trial judge out of the presence of the jury, Ms. Bell testified:

BY MR. VILLANOVA:

Q.: You are still under oath. Now, Miss Bell, did you realize before I told you yesterday that if you testified and in effect confessed to some implications that you had in this yourself, did you realize that you were subject to any future prosecution on this?

A.: No, sir. It was my understanding that all the charges were dropped and that was on the state and federal level.

Q.: Let me ask you this.

THE COURT: I don’t think she finished.

THE WITNESS: That was all.

THE COURT: All right. Go ahead.

BY MR. VILLANOVA:

ed.: Continue.

A.: And I didn’t think these charges could be brought up again, the same charges against me.

Q.: You didn’t know that the federal government has the power to prosecute people as juveniles?

A.: It was my understanding that they were dropped completely and it wasn’t going to go to the state level or federal level.

. Although the majority opinion suggests that Ms. Bell “felt increasingly intimidated” partly as a result of the interview with Villanova (p. 226), Perr’s testimony was that she expressed feelings of intimidation the day before the interview, not thereafter.

. See majority opinion, p. 226.

. At the evidentiary hearing, Ms. Bell testified, in response to a question from Mr. Villanova as to whether she would not have taken the fifth amendment regardless of his warnings to her, knowing as she now did, that she was opening herself up “to juvenile prosecution and so forth,”

A.: I don’t know. I am not sure right now. I would have to think about it.