Appendix — Alessio v. United States

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APPENDIX A

UNITED STATES COURT OF APPEALS

FoR THE THIRD CIRCUIT

No. 75-2060

UNITED STATES OF AMERICA

I.

WALTER MORRISON a/k/a “Skip” Morrison, et al.

Nick Boscia, Appellant

(1ID.C. Criminal No. 75-28)

APPEAL FROM THE JUDGMENT AND ORDER OF THE UNITED

STATES DistRICT COURT FOR THE WESTERN DISTRICT

OF PENNSYIVANIA

Submitted January 15, 1976

Betore GIBBONS, FORMAN and ROSENN, Circuit _Judges

OPINION OF THE COURT

(Filed April 27,1976)

Blair A. Grithith, Esq..

United States Attorney

James A. Villanova, Esq..

Assistant United States Attorney

James J. West. Esq.

Assistant United States Attorney

634 U.S. Post Office & Courthouse

Pittsburgh, Pennsylvania 15219

Attorneys for Appellee

Joel S. Perr, Esq.

Perr, Ziegler & Ombres

306 Fourth Avenue

Pittsburgh, Pennsylvania 15222

Attorney tor Appellant

PHOR CORY

Forman, Circuit _Judge.

Appellant Nick Boscia was tound guilty after a jury

trial on two counts, conspiracy to distribute and dis-

tribution of approximately 856.5 grams of hashish in

violation of 21 U.S.C. §§841(a), 846.

The only issue on appeal is whether appellant was

denied a fair trial in that he was deprived of his con-

sututional right co call witnesses in his defense by the

actions of Mr. Villanova, the Assistant United States

Attorney. The trial judge heard sworn testimony, out

of the presence of the jury, from the lawyers for the

detendants (Mr. Boscia was tried with two co-defend-

ants; other indicted conspirators pled guilty), and

trom Mr. Villanova. Though clearly troubled by the

case and terming the actions of the Assistant United

States Attorney “improper,” the judge denied a mo-

tion for mistrial made during the trial and motions

made after trial tor judgment of acquittal or alterna-

tively for a new trial.

I

The story that emerges from study of the record, in-

cluding the testimony given at the evidentiary hear-

ing, is that defendant, Mr. Boscia, and his lawyer

planned his defense around the testimony of Sally Bell,

Mr. Boscia’s girl friend, who allegedly was prepared

to swear that it was she and not Mr. Boscia who had

been involved in the conspiracy to sell hashish. As the

pair told the story to Joel S. Perr, Esg., Mr. Boscia’s

court-appointed lawyer, Mr. Boscia’s involvement

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was minimal and incidental and he decided to reject

the plea negotiations and go to trial. Ms. Bell was orig-

inally indicted with Mr. Boscia and others but charges

were dropped against her when it was disclosed that

she had been under eighteen years at the relevant time.

She seems to have understood that with the dropping

of federal charges she was free from prosecution for

her role in the conspiracy. This, however, was not

true. Under 18 U.S.C. §5302 she could still be

charged as a juvenile in state court, which is now the

usual forum for all federal yuvenile offenders, and if

the state declined to prosecute her, she could be prose-

cuted by permission of the United States Attorney

General in the federal court.

On the morning that the trial commenced, Monday,

April 14, 1975, Ms. Bell assured defense counsel that

she was willing to testify. Mr. Boscia’s lawyer, not

sure of the status of the charges against her but aware

there might be conflict between her interest and that

of his client, requested the court to appoint counsel for

her or grant her immunity. This was opposed by Mr.

Villanova. He stated that he was not going to call Ms.

Bell and, should the detense do so, a warning by the

court of her rights would be sufficient protection. |

The judge said the court would instruct her on her

rights, but expressed doubt as to whether he could ap-

point counsel for a witness or grant immunity except

on motion of the Government.

1. Transcript at 4.

rz Transcript at 4-7.

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During the next few days Mr. Villanova appears to

have had a change of mind as to the protection he con-

sidered that Ms. Bell needed. On at least three occa-

sions he sent messages to her through defense counsel

warning that she was liable to be prosecuted on drug

charges; that it she testified, that tesumony would be

used as evidence against her and, further, that as she

was now cightcen it would be possible to bring fed-

eral perjury charges against her.’ Not content that

these messages would adequately alert her to her peril,

he sent a subpoena to Ms. Bell and had her brought

into his office on Wednesday, April 16.' The sub-

poena would not appear to have had any legal validity

as it was made out for a day already past. Originally

addressed to Mike McBride, his name had been

scratched out and Sally Bell’s inserted instead. The

only purpose of the subpoena would therefore seem to

have been to impress Ms. Bell with the force of the law

with which she was entangling. There, surrounded by

the three law-enforcement officers who had served as

undercover agents in the case and whose testimony

3. Transcript at 303, 306, 350-1, 351-2, 371.

'. Appellant's brief states (p. 5-6) that Mr. Villanova sub-

poenaed and interviewed Miss Bell on the morning of

Thursday, April 17; that this occurred after the Government

had rested its case (Wednesday, April 16), and immediately be-

fore she was called to the stand to testify; that at the interview

she was asked “what testimony she would offer that morning to

the jury’ (emphasis added); and that court was called to order

and Sally Bell to the witness stand as first defense witness imme-

ciately after this interview. The Government's brief fails to

challenge the accuracy of this ming of the questioning of Sally

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Sally Bell was meant to undermine in court, he once

again impressed upon her the dangers of testifying.

At this interview Mr. Villanova, according to his

testimony, advised Ms. Bell of her rights. He testified

that

“Some of the rights I couldn't remember myself,

even though I'm an attorney, and the police officers

told me what to tell her as far as her rights, her right

not to testify, nur to say anything to me, her rights

to have an attorney present, her right to remain s1-

lent even after she said something... .. I told her

that if she admitted she was part of this thing that

she could in fact be prosecuted as a juvenile in state

court, and I told her that if she could not be prose-

cuted as a juvenile in state court that she could be

prosecuted possibly, with the permission of the at-

torney general, as a juvenile in federal court, and I

told her that she should know that betore she went

up to the witness stand and confessed.

“Talso told her that if she testified falsely that she

could subject herself to a perjury charge, and I told

4. (Contd.)

Bell by Mr. Villanova. However, the record shows that Mr.

Villanova, at the evidentiary hearing held immediately after

Sally Bell's tesumony on the morning of April 17, stated “I

talked to her in our office yesterday (emphasis added) and ad-

vised her of her rights.” (Transcript at 377). It ts also clear from

his examination of Ms. Bell at the evidentiary hearing that the

interview had taken place the previous day (Transcript at 389).

The District Court accepted Mr. Villanova’s testimony as true.

We also accept it as true and reject as inaccurate the statement of

facts in pp. 5,6 of Attorney Perr’s brict for Mr. Boscia.

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her that even though the charges were dismissed

against her as an adult on the dope charge itself,

that if she testified falsely she was now an adult over

18, and if we could prove it, and she was testifying

falsely on behalf of Nick Boscia thinking to get her

to lie to exculpate himself and get off the hook, she

could be prosecuted for perjury, and she should

know that.”’ Transcript at 377-9.

Ms. Bell seems to have felt increasingly intimidated

under this barrage of warnings.” When she was called

to the stand on the morning of Thursday, April 17,

though she answered many of the questions fully and

intelligently, there were more than thirty questions

which she refused to answer on the ground that the

answers might incriminate her, thus depriving appel-

lant of much of the evidence he had expected to place

before the jury. After Ms. Bell's testimony, Judge

Knox held the before-mentioned evidentiary hearing

at which the defense attorneys, Mr. Villanova and Ms.

Bell testified under oath.

II

The Supreme Court has stated:

“The right to offer the testimony of witnesses, and

to compel their attendance, if necessary, is in plain

5. Mr. Perr testified: “Now, on late Tuesday Miss Bell

indicated to me that she felt intimidated by the remarks and

she was getting to a point where she was scared to testify.”

‘Transcript at 352.

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terms the right to present a defense, the right to

present the defendant's version of the facts as well

as the prosecution’s to the jury so it may decide

where the truth lics. Just as an accused has the right

to confront the prosecution's witnesses for the pur-

pose of challenging their testimony, he has the

right to present his own witnesses to establish a de-

fense. This right is a fundamental element of due

process of law.”” Washington v. Texas, 388 U.S. 14 at

19 (1967).

This right is found specifically in the Sixth Amend-

ment right to compulsory process.” A recent com-

mentator’ has traced the development of the

compulsory process clause finding that at the time of

its adoption it stood for the principle that “a defend-

ant should have a meaningful opportunity, at least on

a par with that of the prosecution “to present a case in

his favor through witnesses.”’ Mr. Boscia alleges that

the actions of Mr. Villanova denied him this right.

We agree.

6. In Washington v. Texas the Supreme Court held that the

right is so fundamental and essential to a fair trial that it is in-

corporated in the Due Process Clause of the Fourteenth

Amendment. Some cases since then have been based on the Due

Process Clause without reference to the Sixth Amendment e.g.

Webb v. Texas, 409 U.S. 95 (1972).

7. Western “The Compulsory Process Clause’’ 73 Michigan

Law Review 71 (1974).

8. The District Court pointed out to Mr. Villanova, “Ifa de-

fense counsel would go to a witness you would want to go toa

grand jury about it.’ Transcript p. 386.

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The grounds on which the District Court denied

Mr. Boscia’s motions were that Mr. Villanova’s ac-

tions were done in good faith, did not cause any sub-

stantial prejudice to Mr. Boscia and did not deprive

him of any right to which he was entitled. We believe

that the Supreme Court decision in Webb v. Texas, 409

U.S. 95 (1972) stands directly in the way of the Dis-

trict Court’s conclusion and must control this case.

In Webb, the Supreme Court reversed the Texas

Court of Criminal Appeals and found the defendant

had been denied due process where the trial judge

gratuitously and unnecessarily singled out the detend-

ant’s only witness for a lengthy admonition on the

dangers of perjury, assuring the witness that if he lied

he would be prosecuted and probably convicted of

perjury, that the resulting sentence would be added

onto the one he was serving and impair his chances of

parole. After this warning, the witness had refused to

testify and was excused by the court.

The District Court sought to distinguish Webb on

the grounds that the witness in that case had been

driven trom the stand by the judge’s warning whereas

Sally Bell testified freely to non-incriminating matters

before the jury and testified out of yury hearing on the

conversation she had with Mr. Villanova. We do not

find these distinctions relevant to the issue of whether

the actions of the prosecutor interfered with Mr.

Boscia’s right to have his witness give evidence in his

favor.

The District Court fouad that the remarks of Mr.

Villanova were the cause of Sally Bell's choice not to

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incriminate herself.’ Such a finding would scem in-

deed mandated by the burden of proot established for

such a question in Webb. There the Texas Court of Ap-

peals had held there was no showing that the witness

had been intumidated by the admonition or refused to

tesufy because of it. The Supreme Court disagreed,

409 U.S. at 97, 98. It said:

The fact that Mills was willing to come to court to

testify in the petitioner's behalf, refusing to do so

only after the judge’s lengthy and intimidating

warning, strongly suggests that the judge's com-

ments were the cause of Mills’ refusal to testify... ..

“In the circumstances of this case, we conclude that

the judge’s threatening remarks, directed only at

the single witness for the defense, effectively drove

that witness off the stand, and thus deprived the pe-

titioner of due process of law under the Fourteenth

Amendment.”

The actions of the prosecutor in his repeated warn-

ings Which culminated in a highly intimidating per-

sonal interview were completely unnecessary. A

warning of rights by the court prior to Sally Bell's tes-

. The court observes that although the remarks by the As-

Prise United States Attorney did cause Sally Bell to choose not to

incriminate herself, she was not so intimidated as to refuse to

report these matters to the court and to testify as to the conver-

sation that she had had with the Assistant United States At-

torney. Likewise she testified to the jury as to many relevant

matters... .. * Unpublished opinion filed 8/12/75 at pp. 7

(emphasis added).

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timony would be adequate protection against an un-

knowing waiver of her right against self-

incrimination, and the District Judge stated on the

first day of trial that he would give such a warning.

The good faith of the Assistant United States Attorney

would be relevant if be were charged with violation of

18 U.S.C. §1503 which makes the intimidation of a

federal witness a criminal offense. It is not, however,

relevant to an inguirty into whether a defendant was

denied his constitutional right.

Nor does the opinion of the District Court that

“corroboration of Boscia’s story by Sally Bell could

not have affected the verdict™'’ excuse the in-

tringement of Mr. Boscia’s rights. The District Court

states that Boscia had “admitted every clement of the

crime charged except intent and had admitted a great

deal of facts from which the jury could infer intent.”

Mr. Boscia still had the right to put before the jury

facts to contradict that intent. Prior to trial the District

Court had refused to accept a guilty plea from Mr.

Boscia because there was insufficient basis for the plea

on the facts that Boscia would admit."'

In Webb the defendant had been surprised during

an armed robbery and held by the wounded victim at

gunpoint ull the police arrived. As Justice Blackmun’s

dissent, in which Justice Rhenquist joined, points out,

there was “overwhelming evidence of guilty”, 409

U.S. at 99. But the majority of the Court ignored that

10. Opinion at 10.

11. Transcript at 360.

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fact, apparently finding it irrelevant, and reversed the

conviction as an infringement of the petitioner's duc

process rights. Accord U.S. v. Thomas, 488 F.2d 334,

346 (6th Cir. 1973). Thus where the Government has

prevented the defendant's witness from testifying

freely before the jury, it cannot be held that the jury

would not have believed the testimony or that the er-

ror is harmless.

Although as a general rule there is no duty to advise

a witness in court or at a grand jury proceeding of his

right not to incriminate himself, 98 CJS Witnesses G44

(1957): U.S. «. Lunenberg, 374 F.2d 241 (6th Cir.

1967), it is entirely proper for the court in its dis-

cretion to issue such warnings. In this case. the detense

counsel had raised the problem with the court at the

very opening of trial. The court had said it would in-

struct Sally Bell on her rights and did in fact do so at

the appropriate time. '~ The actions of Mr. Villanova

were totally unnecessary. Ms. Bell could have made a

knowing choice of whether to testify or not on the

basis of the formal warning from the court. The pres-

sure brought to bear on her by the Assistant United

States Attorney interfered with the voluntariness of

her choice and infringed defendant's constitutional

right to have her freely-given testimony.

This case seems clearly ruled by Webb. Truc, it was

the trial judge in that case who “effectively drove that

{the defendant's} witness off the stand.” 409 U.S. at

98. Here it was the influence of the Assistant United

12. Transcript at 309-10.

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Sates Attorney, Mr. Villanova, a tigure somewhat

lower in the hierarchy than the trial pudge but none-

theless the symbol of the Government's power to pros-

ecute offenders. However good the trial judge found

the intentions of Mr. Villanova, his bizarre conduct

toward a witness for the detense is not to be condoned.

It was without doubt responsible tor the course pur-

sued by Sally Bell in refusing to testify and to that ex-

tent deprived Mr. Boscia of due process of law under

the Fourteenth Amendment. Under such circum-

stances the order of the United States District Court

tor the Western District of Pennsylvania filed August

12. 1975, denying the motion tor a new trial will be

reversed.

There remains the question of whether a fair trial of

Mr. Boscia can now be held or whether the harm done

by Mr. Villanova’s actions ts irreparable. '

When defense counsel at the opening of the trial.

betore any untoward circumstance had occurred, re-

quested immunity for Sally Bell, the District Court

correctly stated that immunity ts granted only at the

request of the United States. 18 USC. 86003 empow-

ers the District Court to grant immunity “upon the

request of the United States attorney tor such district.”

The conflict between the right of a defendant to pro-

13. Judge Knox during the evidentiary hearmy stated,

“One of the things | wonder about is tf a tarr trial can ever be

held in this case.” Transcript at 386.

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duce evidence in his favor and the right of witnesses

not to incriminate themselves has been raised in many

cases when a defendant has sought to obtain immunity

for his witness. The courts have invariably held that

they lack power to grant immunity except On request

of the Government. US. rv. Berrigan, 482 F.2d 171,

190 (4d Cir. 1973): U8. 2. Allstate Mortgage Corp..

507 F.2d 492 (7th Cir. 1974): cert. den. 421 U.S. 999.

The rationale for this unavailability of immunity to

a witness at the defendant's request has been character-

ized thus: “A person suspected of crime should not be

empowered to give his confederates an immunity

bath.” In re Kilgo, 484 F.2d 1215, 1222 (4th Cir.

1973). However, 18 U.S.C. §6002 does not provide an

“immunity bath” for witnesses but merely provides

“use immunity.” so that no testimony compelled by

the grant of immunity, nor any information directly

or indirectly derived from such testimony, may be

used against the witness in a subsequent prosecution

other than tor perjury. The Supreme Court in Kasti-

gan v. l nited States, 406 U.S. 441 (1972) held that a

grant of use immunity affords adequate protection of a

witness’ right not to incriminate himself and enables

the Government to compel the witness to testify.

There are circumstances under which it appears due

process may demand that the Government request use

immunity for a defendant's witness. See Dicta in U.S.

t. Leonard, 494 F.2d 955, 985 0.79 (D.C. Cir. 1974)

(concurring and dissenting opinion of Bazclon C.J.);

and Cf. Earl v. U.S.. 361 F.2d $31,534 0.1 (D.C. Cir.

1966) (Burger J}.). Such a circumstance was created in

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this case when prosecutorial misconduct caused the

defendant's principal witness to withhold out of fear

of seii-incrimination testimony which would other-

wise allegedly have been available to the defendant.

At the new trial, in the event that the defendant calls

Sally Bell as a witness, if she invokes her Fifth Amend-

ment right not to testify, a judgment of acquittal shall

be entered unless the Government, pursuant to 18

U.S.C. §§ 6002, 6003, requests use immunity tor her

testimony.

Rosenns, Circuit Judge, Dissenting

The Assistant United States Attorney may have

acted imprudently and perhaps reprehensibly in his

conterence with Sally Bell, but I do not believe his ac-

tons denied the defendant Boscia a fair trial. A de-

fendant has the right to have his witnesses testify free

trom intimidation. A defendant, however, may not

complain when his witness freely exercises the privi-

lege to plead the fifth amendment. 1, therefore, re-

specttully 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 discov-

ered that she was under cightcen years of age at the

time of the alleged oftense. She apparently understood

that with the dropping of the federal charges, she was

relieved from prosecution for her role in the con-

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spiracy. As the majority point out, “[t}his, however,

was not true. Under 18 U.S.C. §5302 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 prose-

cuted by permission of the United States Attorney

General in the federal court.” Majority Opinion, pp.

2-3.

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 lan-

guage 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 case. Mr.

Villanova further informed Mr. Perr that he expected

the state court to proceed against Ms. Bell as a juve-

nile; that, absent such prosecution, he would seek per-

mission from the Attorney General to prosecute her in

the federal court; and that since she was now eighteen

vears of age, if she took the stand in behalf of the de-.

fense and lied, she could be prosecuted for perjury.

The Assistant United States Attorney became con-

cerned that Boscia’s lawyer had not passed this infor-

mation on to Ms. Bell.' He thereupon had her brought

to his office under subpoena at the close of the Govern-

1. As the case unfolded, there was ample basis for his con-

cern. At the evidentiary hearing conducted by the trial judge

out of the presence of the jury, Ms. Bell testified:

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SARANS Wet vaeneeeed « a |

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ment’s case and, in the presence of several law enforce-

ment officers, personally advised her of her rights and

of the perils of testifying falsely. Despite these admo-

nitions and any feelings of intimidation which she

may have had at that time,” she appeared in court in

behalf of the defense. Upon being sworn, the tollow-

ing colloguy took place between her and the trial

judge:

THe Court: Miss Bell, it ts my duty to warn you

1. (Cont'd.)

By Mr. VILLANOVA:

Q.: You are still under oath. Now, Miss Bell, did you realize

before I told you yesterday that it you testified and in effect

contessed to some implications that you had in this yourself,

did you realize that you were subject to any future prose-

cution 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 tinsshed.

THe Wrrness: That was all.

THe Court: All right. Go ahead.

By Mr. VILLANOVA:

Q.: 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 puveniles?

A.: It was my understanding that they were dropped com-

pletely and it wasn't going to go to the state level or federal

level.

2. Although the majority opinion suggests that Ms. Bell

“felt increasingly intimidated” partly as a result of the inter-

view with Villanova (p. 5). Perr’s testimony was that she ex-

pressed feelings of intimidation the day betore the mterview,

not thereafter.

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that under the Fifth Amendment of the United

States Constitution you cannot be compelled to tes-

tify 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 clect

to testify, anything you say might be used against

you in court. You do have the right to have an at-

torney advise you if you wish to testify or not.

SALLY Bett: Yes, sir, PI testify.

THe Court: Do you want an attorney?

SALLY BELL: No.

Ms. Bell thereupon testified for the detense. An cx-

amination of the transcript of her testimony reveals

that she responded to questions of counsel and court

“fully and intelligently.’ 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 ct-

fect 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 in-

structed in court by the trial judge.

This young lady was obviously a perceptive,

bright, and alert witness. The testimony she did give

3. See majority opinion, p. 5.

ay

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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 pur-

chase 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 testi-

fied on direct examination that she knew what was to

take place at State College but, when asked how she

knew, she replied “TH 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-

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 mecha-

nistic process in which equal pressures applicd to

different persons achieve identical results. Pressures

which overawe the weak or sear the sensitive may be

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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 an an intelligent and

strong personality. Only when she thought her testi-

mony 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 As-

sistant 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.!

I find Webb v. Texas, 409 U.S. 95 (1972), dis-

tinguishable. 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

'. Atthe 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. 1 am not sure right now. | would have to

think about tt.

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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 re-

fuse to testify. She testified at length and freely. She re-

jected 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 cir-

cumstances, 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 vol-

untary choice whether or not to testify.”’ Id. at 98. In

the case sub judice, a judge did not exert pressure on

the witness; on the contrary, he used his office to pro-

vide her every opportunity to testify freely. The wit-

ness was not driven from the stand; she took it

willingly and gave testimony freely.

I do not discern any denial of a fair trial to the de-

fendant. The evidence of his guilt is overwhelming. I

would affirm the judgment of the district court.

A True Copy: