Opposition Brief — Boyett v. United States

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In the Supreme Court of the United States

OCTOBER TERM, 1991

KoBy DEAN BOYETT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the district court’s exclusion of the testi-

mony of two defense witnesses, after they had as-

serted their Fifth Amendment privilege against

compelled _ self-incrimination, violated petitioner’s

rights under the Compulsory Process Clause of the

Sixth Amendment.

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TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Brown V. United States, 356 U.S. 148 (1958) ........

Chambers Vv. Mississippi, 410 U.S. 284 (1973) ........

Diggs Vv. Owens, 833 F.2d 489 (3d Cir. 1987), cert.

denied, 485 U.S. 979 (1988) _.......22..2.. cee

Hoffman v. United States, 341 U.S. 479 (1951)...

Lawson V. Murray, 837 F.2d 653 (4th Cir.), cert.

denied, 488 U.S. 831 (1988) —....000.0000000eee

Pillsbury Co. v. Conboy, 459 U.S. 248 (1983) ........

Rock v. Arkansas, 483 U.S. 44 (1987) -......000000000....

United States v. Doddington, 822 F.2d 818 (8th

SEENON EE RE RIED SES

United States v. Ferguson, 758 F.2d 843 (2d Cir.),

cert. denied, 474 U.S. 841 (1985) 2.000000.

United States v. Gomez-Rojas, 507 F.2d 1213 (5th

Cir.), cert. denied, 423 U.S. 826 (1975) —............

United States v. Goodwin, 625 F.2d 693 (5th Cir.

a scomirmeenwasetonoanes

United States v. Herrera-Medina, 853 F.2d 564

Nene secinsesnadeabe

United States v. Khan, 728 F.2d 676 (5th Cir.

a swsistinicsbewenniannn

United States v. Lord, 711 F.2d 887 (9th Cir.

ESO Ee

United States v. Melchor-Moreno, 536 F.2d 1042

Ne cennnlinnnionnccne

United States v. Nobles, 422 U.S. 225 (1975)...... i

United States v. Parcels of Land, 903 F.2d 36 (1st

Cir.), cert. denied, 111 S. Ct. 289 (1990) _.....00.

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IV

Cases—Continued : Page

United States v. Paris, 827 F.2d 395 (9th Cir.

1987) . sccasnacesesalsdeclaaiceaiadaadeesiciatsnsaledulalbalaitatie 5

United States v. Thornton, 733 F.2d 121 (D.C. Cir.

BO ick. doskoiseahaleatasssclctinspbadehaegeentniaetpniniaineaeecininancianaie 5

Washington v. Texas, 388 U.S. 14 (1967) .............. 5, 6

Wisniewski v. United States, 353 U.S. 901 (1957).. 8

Constitution and statutes:

U.S. Const. :

a eeaiaeanieennell 38, 4, 5, 6, 7, 8, 9

Amend. VI (Compulsory Process Clause) ........ 4,5,9

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§u the Supreme Court of the United States

OCTOBER TERM, 1991

No. 90-1666

KoBYy DEAN BOYETT, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App.

la-5a) is reported at 923 F.2d 378.

JURISDICTION

The judgment of the court of appeals was entered

on January 30, 1991. The petition for a writ of

certiorari was filed on April 29, 1991. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Texas, petitioner

was convicted of aiding and abetting the attempted

manufacture of methamphetamine, in violation of 21

(1)

2

U.S.C. 841(a)(1) and 846, and 18 U.S.C. 2. He

was sentenced to ten years’ imprisonment. The court

of appeals affirmed. Pet. App. la-5a.

1. In June 1989, petitioner moved to Spring,

Texas, to live with his cousin, Troy Jones, and Jones’s

girlfriend, Carrie Brown. Soon after moving in, peti-

tioner discovered a methamphetamine laboratory in

the attic of his cousin’s duplex. On June 27, 1989,

petitioner drove Jones to a nearby chemical supply

store, which was under surveillance by agents of the

Drug Enforcement Administration (DEA). The

agents watched as Jones purchased various chemicals

known to be used in the manufacture of methamphet-

amine. As Jones was completing the purchase, peti-

tioner entered the store and spoke to him for a mo-

ment. After they left the store, petitioner and Jones

realized that they were being followed. In an attempt

to evade the DEA agents, petitioner drove through a

shopping center parking lot several times. Pet. App.

2a; Gov’t C.A. Br. 2-4.

Petitioner and Jones eventually returned to the

duplex. That evening, Jones manufactured metham-

phetamine in the attic laboratory, producing smells

powerful enough to be detected by agents conducting

surveillance across the street from the duplex. The

following morning, the agents saw petitioner ner-

vously and repeatedly going in and out of the duplex.

Pet. App. 2a; Gov’t C.A. Br. 4.

The agents obtained a warrant and searched the

duplex later that day. In addition to finding the

attic laboratory, the agents found traces of metham-

phetamine in petitioner’s: room, which was located in

a loft area only a few yards from the entrance to the

attic and which was filled with a strong smell of

methamphetamine. After the search, the agents ques-

tioned Jones and Brown, both of whom denied that

3

petitioner had participated in the methamphetamine

operation. Pet. App. 3a; Gov’t C.A. Br. 4-6.

2. Early in the trial, petitioner’s counsel an-

nounced that he intended to call Jones and Brown as

defense witnesses. The government objected, antici-

pating that those witnesses might frustrate cross-

examination by invoking their Fifth Amendment

privilege against compelled self-incrimination in re-

sponse to government questions. To determine the

validity and scope of the witnesses’ assertion of the

Fifth Amendment privilege, the district court held an

evidentiary hearing out of the presence of the jury.

Pet. App. 3a; Gov’t C.A. Br. 10.

At the hearing, Jones testified that petitioner

neither knew about nor participated in the metham-

phetamine manufacturing operation. When the pros-

ecutor sought to cross-examine him, Jones repeatedly

invoked his Fifth Amendment privilege.’ Noting

Jones’s refusal to answer questions relating to peti-

tioner’s knowledge of the methamphetamine opera-

tion, the district court excluded Jones’s testimony.

Pet. App. 3a; Gov’t C.A. Br. 10-11.

Brown declined to answer any questions at the evi-

dentiary hearing, asserting her Fifth Amendment

privilege against compelled self-incrimination. Peti-

tioner’s counsel then summarized the testimony he

was seeking to elicit. In response to the court’s in-

quiry whether she was willing to answer defense

counsel’s questions, Brown again invoked her Fifth

Amendment privilege, whereupon the court excused

1 Jones refused to answer questions about how many times

he had manufactured methamphetamine, whether he had

manufactured methamphetamine at the duplex between June

1 and June 28, and whether he had “powdered out” meth-

amphetamine at the duplex. Gov’t C.A. Br. il.

4

her from testifying. Pet. App. 3a; Gov’t C.A. Br.

11-12,

3. The court of appeals affirmed, rejecting peti-

tioner’s contention that the exclusion of the testimony

of Jones and Brown violated petitioner’s right under

the Sixth Amendment to compulsory process. Pet.

App. 3a-4a. The court stated that the Sixth Amend-

ment does not entitle a defendant to overcome a wit-

ness’s assertion of the Fifth Amendment privilege;

rather, ‘an accused’s right to compulsory process

must give way to the witness’ Fifth Amendment

privilege not to give testimony that would tend to in-

criminate him.” Pet. App. 4a, quoting United States

v. Khan, 728 F.2d 676, 678 (5th Cir. 1984). Apply-

ing that principle, the court upheld the district

court’s exclusion of proposed defense witness testi-

mony in this case.

The court observed that the district court had

“properly investigated the legitimacy and scope of the

privileges extending to Jones and Brown” and had

determined that they were “well-founded.” Pet. App.

4a. The court stated that there was “substantial sup-

port in the record” for the findings that the witnesses

had invoked the Fifth Amendment because of a “rea-

sonable apprehension of prosecution,” and that their

claims of privilege “‘encompassed matters material to

[petitioner’s] knowledge of and involvement in the

methamphetamine operation.” Jbid. The court also

concluded that the district court “acted well within

its discretion in striking all, not merely a portion, of

the testimony of these witnesses.” /bid., citing, inter

alia, United States v. Nobles, 422 U.S. 225, 241

(1975).

5

ARGUMENT

Petitioner renews his contention (Pet. 8-20) that

the exclusion of the testimony of Jones and Brown

violated his right under the Sixth Amendment’s Com-

pulsory Process Clause to present witnesses in his

defense. That claim does not warrant this Court’s

review.

1. Petitioner initially asserts (Pet. 12-13) that

the court of appeals erred in adopting a “per se rule”

that a defendant’s right to compulsory process can-

not supersede a witness’s assertion of the privilege

against compelled self-incrimination. The court’s

holding, however, is consistent with the settled rule

that the right to compel the attendance of witnesses

does not encompass the right to compel a witness to

waive his Fifth Amendment privilege. See, e.g.,

Diggs v. Owens, 833 F.2d 439, 444 (3d Cir. 1987),

cert. denied, 485 U.S. 979 (1988); United States v.

Paris, 827 F.2d 395, 399 (9th Cir. 1987); United

States v. Thornton, 733 F.2d 121, 125 (D.C. Cir.

1984).

Contrary to petitioner’s suggestion (Pet. 10-11,

20), that rule is not inconsistent with decisions of

this Court invalidating procedural and evidentiary

rules that prevent a defendant from offering relevant

evidence at trial to support his defense. See Rock v.

Arkansas, 483 U.S. 44 (1987); Chambers vy. Missis-

sippi, 410 U.S. 284 (1973); Washington v. Texas,

388 U.S. 14 (1967). Crucial to the Court’s decision

in each of those cases was its determination that the

particular restriction at issue was an “arbitrary”

limitation on the defendant’s opportunity to offer

exculpatory evidence. See Rock, 483 U.S. at 61 (state

evidentiary rule prohibiting defendant from offering

his own hypnotically refreshed testimony was an “ar-

6

bitrary” restriction on defendant’s right to testify on

his own behalf); Chambers, 410 U.S. at 296, 302

(holding invalid combined application of voucher

rule, under which defendant was bound by direct

testimony of any defense witness, and state hearsay

rule, which “mechanistically” excluded reliable evi-

dence); Washington, 388 U.S. at 23 (evidentiary

rule prohibiting defendant from introducing accom-

plice’s testimony “arbitrarily” denied the defendant

the right to present relevant evidence). Nothing in

those decisions supports petitioner’s claim that a de-

fendant’s right to present favorable testimony should

supersede a witness’s invocation of a constitutional

privilege. Indeed, the Court emphasized in Washing-

ton that its opinion should not ‘“‘be construed as disap-

proving testimonial privileges, such as the privilege

against self-incrimination.” 388 U.S. at 23 n.21.

2. Petitioner also contends (Pet. 13-15) that the

district court erred in excluding all of Jones’s testi-

mony; he asserts that Jones should have been allowed

to testify about matters as to which he was willing

to waive the Fifth Amendment privilege. A defend-

ant’s right to present witnesses in his defense, how-

ever, does not carry with it the right to avoid cross-

examination. See Brown v. United States, 356 U.S.

148, 155-156 (1958); United States v. Parcels of

Land, 903 F.2d 36, 43 (1st Cir.), cert. denied, 111

S. Ct. 289 (1990); United States v. Herrera-Medina,

853 F.2d 564, 567-568 (7th Cir. 1988); Lawson v.

Murray, 837 F.2d 653, 655-656 (4th Cir.), cert.

denied, 488 U.S. 831 (1988); United States v. Dod-

dington, 822 F.2d 818, 822 (8th Cir. 1987); United

States v. Ferguson, 758 F.2d 843, 849 (2d Cir.),

cert. denied, 474 U.S. 841, 1032 (1985). Absent the

opportunity for cross-examination, the jury is apt

7

to get a distorted picture of the truth; cross-exami-

nation is therefore necessary to assure that the truth-

seeking function of the trial is fulfilled. As this

Court stated in United States v. Nobles, 422 U.S.

225, 241 (1975), “[t]he Sixth Amendment does not

confer the right to present testimony free from the

legitimate demands of the adversarial system; one

cannot invoke the Sixth Amendment as a justification

for presenting what might have been a half-truth.”

Just as this Court in Nobles upheld the exclusion of

a defense investigator’s testimony when the defendant

declined to produce the investigator’s notes for use in

cross-examination, the court of appeals in this case

properly refused to allow petitioner to present testi-

mony favorable to his defense where the government

would be deprived of the opportunity for cross-

examination.

The decision in United States v. Lord, 711 F.2d

887 (9th Cir. 1983), does not conflict with the re-

sult here. In Lord, the court concluded that because

the government’s proposed cross-examination of a de-

fense witness had only collateral value, the witness’s

limited invocation of her Fifth Amendment rights did

not support the exclusion of her entire testimony.’

Here, in contrast, the government’s proposed cross-

examination of Jones did not go to collateral matters.

2In Lord, the defense witness testified on direct examina-

tion that a DEA informant had previously badgered people

for drugs; on cross-examination, the government asked the

witness to name people she had introduced to the DEA

informant as drug suppliers. 711 F.2d at 889. The court held

thatf 's] pecific names of suppliers [did] not pertain” directly

to the witness’s testimony; thus, it was error to strike her

entire testimony when she refused to provide the names on

Fifth Amendment grounds. /d. at 892.

8

The government proposed to inquire about other in-

stances of Jones’s manufacture of methamphetamine

while petitioner lived at the duplex; that line of

questioning went to the heart of Jones’s testimony

that petitioner was not aware of the drug manufac-

turing activity. Accordingly, the court of appeals

correctly upheld the district court’s conclusion that

the denial of that cross-examination justified exclu-

sion of Jones’s entire testimony.

3. Finally, petitioner contends (Pet. 15-17) that

the district court did not make a sufficient inquiry

into the “merit and parameters” of Brown’s asser-

tion of the Fifth Amendment privilege. That claim

is not only factbound, but also lacks merit.*

Petitioner indicated that he wanted to ask Brown

to confirm her prior out-of-court statements that pe-

3 Petitioner also insists (Pet. 14) that the decision in this

case conflicts with prior Fifth Circuit decisions, but this

Court does not sit to review such alleged intra-circuit con-

flicts. See Wisniewski v. United States, 353 U.S. 901 (1957)

(per curiam). In any event, this case is unlike United States

Vv. Goodwin, 625 F.2d 693 (5th Cir. 1980), and United States

Vv. Gomez-Rojas, 507 F.2d 1213 (5th Cir.), cert. denied, 423

U.S. 826 (1975). In Goodwin, the court held that the district

court erred in allowing witnesses to make “blanket assertions

of their Fifth Amendment rights regardless of the questions

to be asked by defense counsel.” 625 F.2d at 701. Similarly,

in Gomez-Rojas, the district court “excused [the witness]

without the slightest inquiry into the legitimacy or the scope

of his proposed refusal to testify.” 507 F.2d at 1217. Here, the

court made an inquiry appropriate to the circumstances. Peti-

tioner also cites United States v. Melchor-Moreno, 536 F.2d

1042, 1049 (5th Cir. 1976), but that case involved a witness

whose assertion of his Fifth Amendment privilege was re-

jected because he was acting in cooperation with law enforce-

ment agents during the drug transaction about which the

defendant’s counsel wished to question him. There was no

similar cooperation present here.

9

titioner was not involved in the offenses for which

he was on trial. The court then specifically asked

Brown whether she wanted to answer those questions;

Brown invoked her Fifth Amendment privilege.

Gov’t C.A. Br. 12. That inquiry was adequate to

allow the court to determine that Brown had a valid

claim of privilege with respect to petitioner’s proposed

questions. The court was well aware that Brown,

like petitioner, had been living with Jones in the

duplex where methamphetamine was being manu-

factured. Any testimony Brown could have given

would have had the obvious potential to incriminate

her in connection with the methamphetamine opera-

tion. See Hoffman v. United States, 341 U.S. 479,

486-487 (1951) (“To sustain the privilege, it need

only be evident from the implications of the question,

in the setting in which it is asked, that a responsive

answer to the question or an explanation of why it

cannot be answered might be dangerous because in-

jurious disclosure could result.’’) .*

* Although acknowledging that the government could not

have been required to grant immunity to Jones and Brown so

that they could testify at his trial, petitioner insists (Pet. 19)

that the district court “should have considered the Govern-

ment’s unilateral right * * * [to grant immunity] in deter-

mining whether the Government was denied effective cross-

examination.” Petitioner, however, offers no support for that

contention, and it is without merit. If courts could consider

the government’s power to grant immunity in determining

whether defense witnesses may testify notwithstanding their

intention to assert the Fifth Amendment on cross-examination,

the net result would be a Hobson’s choice for the government:

either to allow a defense witness to thwart effective cross-

examination, or to grant immunity where it would not other-

wise be justified by legitimate government interests. The

Sixth Amendment does not entitle a defendant to put the gov-

10

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

NINA GOODMAN

Attorney

JULY 1991

ernment in that position. Cf. Pillsbury Co. v. Conboy, 459

U.S. 248, 261-262 (1983).

5 U. S. GOVERNMENT PRINTING OFFICE; 1991 282061 20658

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